(Judgment of the Court was passed by P.MURGESEN, J) This Criminal Appeal is directed against the conviction and sentence imposed by the learned Additional District and Sessions Judge (Fast Track Court), Ramanathapuram dated 18.11.2008, made in S.C.No.18 of 2001, on the appellant/accused.
2.The case of the prosecution is as under:-
P.W.1-Malliga is the resident of Pitchai Pilaiyendhal village. He is the wife of deceased Ramasamy. P.W.2-Paulmeni is the son of P.W.1. P.W.3-Ganesan is the resident of Peria Pichai Pilaiyendhal village. P.W.4-Shanmugavel is the resident of Lakshmipuram. P.W.5-Meliselvam is the resident of Pichai Pilaiyendhal. P.W.6-Dhanraj is the resident of Seiyamangalam and he is the brother-in-law of P.W.1. P.W.7-Dharmalingam is the resident of Pitchai Pillayar Kovil. P.W.8-Ramakrishnan is the resident of Thiruvarangam. P.W.9-Periyasamy is the resident of Pichai Pilaiyendhal. P.W.10-Muthupandi is the resident of Paravai. P.W.17-Vellaiammal is blind and deaf.
3.P.W.1's husband deceased Ramasamy was an accused for murdering his brother-in-law Arumuga Thevar along with Ramar Thevar and Lakhsmana Thevar. Accused Nos.1 to 4 are the sons of deceased Arumuga Thevar. Accused Nos.5 and 6 are sons of Lakhsmana Thevar. Accused Nos.7 to 11 are the sons of Ramar Thevar. On 30.07.1999 at about 9.00 P.M., deceased Ramasamy was sleeping on a cot in front of the house of P.W.1. At that time, the accused attacked him with Aruval. This was seen by P.W.1. At that time P.Ws.2 and 3 were also present in the house.
4.One Sethuraman informed about the occurrence to P.W.16-Gandhi, Head Constable of Veera Cholan Police Station. P.W.16 informed him that the occurrence took place within the jurisdiction of Parthibanoor Police Station. P.W.21-Muthiah was Inspector of Parthibanoor Police Station. On 30.07.1999, at about 11.00 P.M. he received a message from Veera Cholan Police Station about the occurrence. He immediately went to Pichai Pilaiyendhal village and saw the body of the deceased Ramasamy and recorded the statement of P.W.1 as complaint and returned to the Police Station and registered a case in Crime No.122 of 1999 under
Sections 147,148,324,326,307 and
302 I.P.C. Ex.P.17 is the printed F.I.R. Then, he sent for the photographer P.W.18-Jeganathan, who took M.Os.3 and 4, photographs and negatives.
5.Again on 31.07.1999, at about 3.00 A.M., he visited the scene of occurrence in the presence of P.W.9-Periasamy and Duraipandi and prepared Ex.P.18-Observation Mahazar and Ex.P.19-Rough Sketch. At about 5.00 A.M., he conducted inquest over the body of the deceased and prepared Ex.P.20-Inquest Report. At about 7.00 A.M., he sent the body for conducting postmortem through Constable Ramasamy.
6.P.W.11 Dr.Prakash Karath conducted autopsy on the dead body of deceased on 31.07.1999 and issued Ex.P.8-Postmortem certificate. He found the following external injuries on the dead body:
"1)An incised wound of 10 x 4 1/2 x 4cms in front of neck on the right side just below the lower border of the mandible right from the chin to the angle of mandible. The lower skin flab hanging in oblique direction. The underlying vessels found severed. Blood clots present over the wound.
2)An incised wound of 8 1/2 x 4 1/2 x 4cms in the front of the cheek just 3cm above the Supra external notch 3cms on the right side midline 5 1/2cm on the left side in the horizontal direction. Trachea found cut. Vessels found severed. The cut ends are regular and smooth. Blood clots seen on the wound.
3)An incised wound of 13 x 3 1/2 x 3cm on the back of neck 3cm from the midline extending just below the lower border of left mandible upto the chin. The medial end in the front is tapering. Underlying vessels and muscles severed.
4)An incised wound of 15 x 3 1/2 x 2 1/2cms extending from the nose in the midline towards the right side of neck just below the right ear in the oblique direction, medial end of the wound is tampering. Maxillary bone found cut. Blood clots present.
5)A Elliptical incised wound of 2 1/2 x 1cm bone depth just above the injury number 4.
6)An elliptical stab wound of 6 x 2 1/2 x 8cms. The wound found communicate with the thoracic cavity on the right side in the front of chest just below the right clavicle.
7)An elliptical incised wound of 5 x 2 x 1cms on the medial end of left clavicle.
8)An elliptical stap wound of 6 x 2 1/2 x 7 1/2cms on the front of the left chest just below the middle of the left clavicle to 2.5cm medial to the anterior axillary line.
9)An elliptical incised wound of 4 x 1 1/2 x 1 1/2cms on the lateral aspect of right shoulder in A.P. direction.
10)An incised wound of 1 1/2 x 1 1/2 x 1cm on the front of right shoulder in the horizontal direction.
11)An incised wound of 6 x 1 1/2 skin depth on the back of right elbow towards the right forearm in vertical direction.
12)An incised wound of 6 x 1 1/2 x skin depth on the back of right forearm in horizontal direction.
13)An incised wound of 1 1/2 x 1/2 x 1/2cms on the ulna border of right forearm.
14)An incised wound of 10 x 6cms x bone depth on the dorsal aspect of right hand. The meta carpal bone of right index and middle finger found partially cut and right index finger found missing at the level of metacarpus phelengeal joint. Blood clots found on the wound.
15)An incised wound of 3 1/2 x 1/4 x bone depth on the dorsal aspect of left ring finger.
All the above wounds found with blood clots."
7.Vijayasamy, the son of the deceased was also injured in the occurrence. He was treated by P.W.22-Dr.Maheswaran and he issued Ex.P.40-Accident Register copy. He found the following injuries:
"1) Cut injury back of neck (L) 5 cm x 1cm skin deep.
2) Cut injury back of left supra 7cm x 7cm x 3cm mandible deep.
3) Cut injury back of left forearm 4cm x 2cm x skin deep."
8.On the same day P.W.22 Dr.Maheshwaran examined P.W.2 Paulmeni and he issued Ex.P.39-Accident Register Copy. He found the following injury: "1) Cut injury back left elbow 7" x 5" exposing bone, with skin deep." M.O.1 is the X-Ray taken for Vijayasamy and M.O.2 is the X-Ray taken for Paulmeni by P.W.12-Dr.Indrani, Radiologist.
9.On 31.07.1999 at about 7.00 A.M., P.W.21 Investigating Officer recovered M.O.14-Blood stained Plastic wire checked iron cot, M.O.15-Lunge, M.O.16-Pillow and M.O.17-Blood stained earth from the scene of occurrence under Ex.P.21- Mahazar. Then, he examined the witnesses and recorded their statements. He examined P.W.2-Paulmeni and Vijayasamy at Hospital.
10.On 02.08.1999 at about 10.00 A.M., he arrested A3, A9, A16, A12 at Veerasolan bus stop. Ex.P.22 is the arrest card. The accused gave confession statements in the presence of P.W.20-V.A.O. Ramachandran and one Asaithambi. The admitted portion of the confession statement of A3 is Ex.P.23. On the basis of the confession statement of A3 M.O.5-Aruval was recovered under Ex.P.25- Seizure Mahazar. The admitted portion of the confession statement of A9 is Ex.P.24. On the basis of the confession statement of A9 M.O.6 Aruval was recovered under Ex.P.26-Seizure Mahazar.
11.On 18.08.1999 at about 1.00 P.M. A4, A13 deceased accused Ramasamy and A11 were arrested by P.W.21 at Thiruchuli bus stand and their confession statements were recorded in the presence of P.W.20-Ramachandran and P.W.8- Ramakrishnan. The admitted portion of the confession statement of deceased accused Ramasamy is Ex.P.27. On the basis of the same M.O.7 Aruval was recovered at the place of Pidaricheri Kanmoy under Ex.P.28-Seizure Mahazar. The admitted portion of the confession statement of A4 is Ex.P.29. On the basis of the same M.O.8-Blood stained Aruval was recovered under Ex.P.30-Seizure Mahazar.
12.Accused Nos.7, 5, 6 and 8 were taken to police custody on 20.08.1999 and their confession statements were recorded in the presence of P.W.9-Periasamy and one K. Periyasamy. The admitted portion of confession statement of A7 is Ex.P.31. On the basis of the confession statement M.O.9-Aruval was recovered under Ex.P.32-Seizure Mahazar. The admitted portion of the confession statement of A5 is Ex.P.33. In furtherance of the same M.O.10-Aruval was recovered under Ex.P.34-Seizure Mahazar. The admisable portion of the confession statement of A8 is Ex.P.35. In furtherance of the same M.O.11-Aruval was recovered under Ex.P.36-Seizure Mahazar. The accused and properties were remanded to judicial custody.
13.On 01.09.2009, at about 10.40 A.M. accused Nos.2 and 10 were arrested at Narikudi Panchayat Union Office and their confession statements were recorded in the presence of P.W.10-Muthupandi and Mani. The admisable portion of the confession statement of A2 is Ex.P.37 and based on that M.Os.12 and 13-Aruvals were recovered under Ex.P.38-Seizure Mahazar.
14.P.W.21 Investigating Officer gave Ex.P.9-Requisition for chemical examination of bloodstained properties. The properties were forwarded to Forensic Laboratory for chemical examination by the Judicial Magistrate under letter Ex.P.10. Ex.P.11 is the Biological report and Ex.P.12 is the Serology Report received by the Court.
15.Since, P.W.21 was transfered, the further investigation was conducted by P.W.23-Raman. He examined P.W.12-Dr.Indrani and P.W.21-Maheswaran and recorded their statements. After completing the investigation, he filed charge sheet against the accused on 21.10.1999.
16.Before the trial Court, P.Ws.1 to 23 were examined and Exs.P.1 to P.40 and M.Os.1 to 17 were marked. All the incriminating pieces of evidence let in by the prosecution witnesses were put to the accused under
Section 313(1) of the Code of Criminal Procedure questioning the accused, and the accused denied the same as false. There was no oral or documentary evidence adduced on the side of the accused.
17.On consideration of the evidence on record, the learned Additional District and Sessions Judge (Fast Track Court), Ramanathapuram, found A5- Paulmani and A7-Chockaiah guilty under
Section 302 I.P.C. and sentenced them to undergo life imprisonment and to pay a fine of Rs.2,000/- each, in default to undergo Rigorous Imprisonment for 6 months and acquitted the other accused.
18.Challenging the judgment of the learned Additional District and Sessions Judge (Fast Track Court), Ramanathapuram the present Criminal Appeal has been filed by the appellants/accused 5 and 7.
19.Originally all the accused were acquitted. On revision, the Hon'ble High Court has directed the trial Court to conduct trial afresh. On reappraisal of evidence, A5 and A7 were convicted by the trial Court.
20.Now the question that needs to be answered in this appeal is whether the accused Nos.5 and 7/appellants could be held guilty under
Section 302 I.P.C.
21.P.W.1 is the resident of Pitchai Pillaiyendhal village. Her husband is deceased Ramasamy. P.W.2 is the son of P.W.1. Her brother-in-law is P.W.6. The relationship between the accused family and the deceased family is not cordial. Deceased Ramasamy, husband of P.W.1 was an accused in a triple murder case. According to the prosecution case, he along with others had murdered his brother-in-law Arumuga Thevar along with Ramar Thevar and Lakshmanan Thevar. Accused 1 to 4 are the sons of the said Arumuga Thevar, accused 5 and 6 are sons of Lakshmana Thevar and accused 7 to 11 are the sons of Ramar Thevar.
22.According to the prosecution, on the fateful day ie., on 30.07.1999, Ramasamy was murdered by the accused. In the occurrence P.W.2-Paulmeni and Vijayasamy, sons of Ramasamy were injured. The injured P.W.2 and Vijayasamy were took on a bullock cart to Valimarichan Village with the help of P.W.3- Ganesan and Sethuraman. From there the injured were taken in a car to Paramakudi Government Hospital. The said Sethuraman informed about the occurrence to the Head Constable, who was incharge of Veera Cholan Police Station. The said Head Constable informed that the crime was committed within the jurisdiction of Parthibanoor Police Station. P.W.21-Muthiah who was in charge of Parthibanoor Police Station received the telephonic message and went to the place of occurrence and recorded the statement of P.W.1 and went to the Police Station and registered a case in Crime No.122 of 1999 under
Sections 147,148,324,326,307 and
302 I.P.C. Then the body was sent for conducting postmortem and the postmortem was conducted by P.W.11-Dr.Prakash Karath. So, the death of Ramasamy was not natural.
23.At the outset, learned Senior counsel appearing for the appellants submitted that P.W.1, who is stated to be the only eye witness has stated different over tacts before the Investigating Officer and before the Court. He would further submit that she also said during the course of chief examination that A5-Paulmeni attacked her husband with Aruval on chest and A7-Chockiah attacked her husband on right cheek with Aruval but during cross-examination she stated that both the accused attacked her husband on the left side and right side of the neck. So, her evidence is quite contrary to the complaint and 161(3) statement.
24.We perused the F.I.R. and the evidence of P.W.1 carefully and meticulously. In the F.I.R. she stated that A7-Chockiah attacked him on right chest and A5-Paulmeni attacked him on the right shoulder, she also stated like that in 161(3) statement. In the chief examination she stated that A5-Paulmeni attacked her husband with Aruval on chest and A7-Chockiah attacked her husband on right cheek with Aruval. No doubt in the cross examination she stated that both the accused attacked him in the neck.
25.Learned Additional Public Prosecutor pointed out that Injury Nos.4 and 8 noted in the postmortem report would establish the case of the prosecution. Postmortem certificate would show that the victim received injury from the nose in the midline towards the right side of neck just below the right ear in the oblique direction and a stab wound on the front of the left chest just below the middle of the left clavicle to the 2.5cm medial to the anterior axillary line.
26.It is the definite evidence of P.W.1 that the appellants were present in the scene of occurrence. P.W.1 is an illiterate villager. She can only affix thump impression. Moreover when the husband was attacked, she is not expected to speak about the injuries caused to the deceased in mathematical precision and in medical terms. In the chief examination she has stated that A5 attacked her husband in the chest and A7 attacked in the right cheek. The postmortem certificate would show that victim received injury in the chest and cheek. This strengthen the case of the prosecution. For that learned counsel for the appellants would submit that P.W.1 stated that her husband was attacked on right and left side of the neck. Further, as per the postmortem certificate the victim also received injury on the right and left side of the neck. When her husband was attacked by many persons, she cannot pin point the area in which the attack which was inflicted. The Hon'ble Supreme Court has pointed out that this Court has to remove the grain from the chaff to find out the truth. It is clear that the overact of the accused was spoken by P.W.1 specifically. Since she is an illiterate villager, she cannot specifically speak about the over tacts of the accused accurately. That cannot be a ground to reject the case of the prosecution.
27.Admittedly, there is light in the facade of P.W.1's house and there is street light. This was spoken by P.W.1. In Ex.P.18, Observation Mahazar also the light was shown. The evidence of P.W.19-Kumareshan, Wire Man of Electricity Board would show that there was no power disconnection in that area. At this juncture, the dispute raised by the appellants is whether there is light in the top or there is light in the facade. P.W.1 is a villager and an illiterate. She put thumb impression in her deposition. So, she stated that there is light in the top. But the presence of light is not disputed. Moreover, the appellants are not strangers to P.W.1. As per the decision of the Hon'ble Supreme Court, even in the darkness the identity of known persons can be ascertained. So, the identity of the accused found by P.W.1 cannot be suspected.
28.P.W.1 and P.W.2 have categorically stated both the appellants/accused Nos.5 and 7 attacked deceased Ramasamy. P.W.2 is the son of P.W.1, who also in his evidence deposed that A7 and A5 attacked his father with an arruval on neck indiscriminately. This statement of evidence cannot be brushed aside. The said evidence of P.W.2 is not shattered in the cross-examination. He also stated that there is light in the house and the appellants/accused 5 and 7 have committed the offence. P.W.3-Ganesan saw the accused with weapon. Though P.Ws.7, 8, 9, 10 have turned hostile, the evidence of P.Ws.1, 2 and 3 would show the presence of accused and their conduct.
29.At this juncture learned Additional Public Prosecutor would point out that the relationship between the victim's family and the accused were not cordial. Already Arumuga Thevar father of accused 1 to 4, Lakhsmana Thevar father of accused 5 and 6 and Ramar Thevar father of accused 7 to 11 were murdered, in which case the deceased Ramasamy was one of the accused. This was spoken clearly and cogently by P.Ws.1 and 3. On careful consideration of the evidence of P.Ws.1 and 3, there is no reason to reject the case of the prosecution.
30.Learned counsel for the petitioner would submit that there is a delay in preparing the F.I.R. because P.W.6 stated that he signed in the complaint of P.W.1 only at 7.30 A.M, on 31.07.1999 who is the brother-in-law of P.W.1. As per the prosecution case one Sethuraman gave a complaint to the Veera Cholan Police Station. Instead of registering the F.I.R. they only forward the message to the Parthibanoor Police Station. The concerned Police came to the scene of occurrence and received the complaint and registered the F.I.R. No doubt P.W.6 stated that he signed in the complaint of P.W.1 at about 7.30 A.M. No doubt it is defective. It is pertinent to point out that he has not stated that he signed it only at 7.30 A.M. 8 years after the occurrence, he deposed there is every possibility of error due to lapse of memory. So, the evidence of P.W.6 cannot shatter the witness of P.W.1, in this respect.
31.The evidence on record would show that there is no delay in registering the F.I.R. after the receipt of the complaint. P.W.21 registered the F.I.R. at 00.45 house and send the same to the Judicial Magistrate through P.W.14-Mohamed Sherif. P.W.14 received the F.I.R. at 2.15 A.M. Since it was night, at 6.00 A.M. he proceeded to the Paramakudi Judicial Magistrate's Court. Since nobody was there he went to the house of Head Clerk of Paramakudi Judicial Magistrate's Court, where he was informed that Judicial Magistrate No.2, Ramanathapuram was the incharge Magistrate. So, he went to the Judicial Magistrate Court No.2, Ramanathapuram. At that time the Judicial Magistrate was conducting cases and later he gave the F.I.R. to the Judicial Magistrate. So, the explanation offered by the Judicial Magistrate is quite convincing. So, there is no delay in registering the F.I.R.
32. On a careful consideration of the evidence on record, we are of the considered opinion that it is proved beyond reasonable doubt that accused have committed the offence. We find no reason to interfere with the well reasoned finding of the trial Court. There is no merit in this appeal and accordingly it is dismissed.
32.In the result, the Criminal Appeal is dismissed and the judgment of conviction and sentence imposed by the Additional District and Sessions Judge, Fast Track Court, Ramanathapuram is confirmed.
sj To
1.The Additional Sessions Judge (Fast Track Court), Ramanathapuram.
2.The Inspector of Police, Boothalur Police Station, Thanjavur.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.