(Judgment of the Court was delivered by S.Nagamuthu.J) The appellant in Crl.A.No.695 of 2012 is the first accused; the appellant in Crl.A.No.740 of 2012 is the third accused and the appellant in Crl.A.No.754 of 2012 is the fourth accused in S.C.No.33 of 2008 on the file of the District and Sessions Judge, Thiruvarur. The second accused was one Mr.Manivannan. He was absconding. Hence, the case against him was split up and the appellants herein alone faced the trial. As against the first accused, the trial Court framed charges under Sections 148, 120(B), 302 r/w 149 I.P.C. As against the accused 3 & 4, the trial Court framed charges under Sections 147, 120(B), 302 r/w 149 I.P.C. By judgment dated 25.09.2012, the trial Court convicted all the three accused and sentenced them as detailed below:-
The appellants/A.1, A.3 & A.4 stand acquitted from the charge under Section 120(B) I.P.C. Challenging the said conviction and sentence, the appellants/A.1, A.3 & A.4, are before this Court with these Criminal Appeals.
2. The case of the prosecution, in brief, is as follows:-
In this case, originally, there were eight accused. The accused by name Mr.Kumar @ Sivakumar; Mr.Kattappu @ Sivakumar; Mr.Jawahar and Mr.Jegan were all juveniles in conflict with law and therefore, they are separately dealt with by the Juvenile Justice Board (JJB). Out of the remaining four accused, one accused by name Mr.Manivannan who was arrayed as A.2 was absconding and therefore, the case against him was split up. These appellants were arrayed as A.1, A.3 & A.4.
3. The deceased in this case was one Mr.Ayyappan, s/o Mr.Natarajan. He was residing at Melagopuravasal, Mannargudi, Tiruvarur District. He was a Painter by profession. Few days prior to the occurrence, it is alleged that one Mr.Kumar @ Sivakumar (Juvenile accused) stalked the deceased. This resulted in a quarrel. This is stated to be the motive for the occurrence. On 15.10.2005, around 8.10 pm, it is alleged that the deceased was passing through the road opposite to the Vijaya theater at Senbagavalli Nagar, Mannargudi. At that time, it is alleged that all these accused (eight persons) were sitting in a nearby vacant site and they were all in an unlawful assembly with the object of killing the deceased. A.1 was armed with Aruval. A.3 & A.4 were armed with wooden logs. The other accused were also armed with either Aruval or wooden logs (the details are not found in the charges). It is further alleged that they all conspired together to do away with the deceased. When the deceased had just come in front of the Vijaya Theater, all the eight persons who were all armed with weapons either with Aruval or Wooden logs surrounded the deceased Mr.Kumar @ Sivakumar (Juvenile accused) cut the deceased with Aruval on his head; Mr.Sowrirajan (A.1) cut the deceased on the left forearm; Mr.Kattappu @ Sivakumar (Juvenile accused) cut the deceased on his left shoulder and right wrist with Aruval; Mr.Jawahar (Juvenile accused) attacked the deceased on his left flank. The other accused, Mr.Manivannan (A.2); Mr.Surendran (A.3); Mr.Natarajan (A.4) and Mr.Jegan (Juvenile accused) attacked the deceased with wooden logs on various parts of the body. The deceased fell down in a pool of blood, having sustained multiple injuries. Immediately after the occurrence, all the accused fled away from the scene of occurrence.
4. Thereafter, the deceased was taken to the Government hospital at Mannargudi at 8.15 pm on 15.10.2005. He was examined by Dr.Murugan (P.W.11). At that time, the deceased was conscious and he told the Doctor that he was attacked by three known persons with Aruval and four other persons who were in their company.
P.W.11 found the following injuries on the deceased:-
(i) a cut injury measuring 6 cm x 1 cm x 1 cm on the right parietal region of the head;
(ii) a contusion measuring 3x3 cm on the left forearm;
(iii) a cut injury measuring 1cm x ¼ x ¼ cm on the left middle finger;
(iv) a cut injury measuring 1cm ½ x ½ cm on the left ring finger;
(v) a contusion measuring 3cm x 3cm on the left upper arm.
5.P.W.11 referred the deceased to the Government Medical College and Hospital at Tiruvarur. Accordingly, he was admitted there. On 16.10.2005 at 11.10 pm, the deceased died in the hospital. On receiving intimation from the hospital, one Mr.R.Kalyanasundaram, a Head Constable went to the hospital and conducted inquest on the body of the deceased between 9.00 am and 12.30 pm on 17.10.2005 and forwarded the body for post mortem.
6.P.W.18 – Dr.Vijayalakshmi, conducted autopsy on the body of the deceased on 17.10.2005 at 3.20 pm. She found the following injuries:-
“1.Bleeding from both nostrils and mouth noted.
2.A liner sutured cut wound with intact silk sutures noted over the right fronto parietal region of scalp measuring 6cmx1cm bone deep with surrounding contusion.
3. A linear scratch abrasion over the back of right upper arm measuring 12 cm x 0.25 cm
4. Abrasion over the middle of back of right upper arm measuring 5x4cm
5. Two superficial incised wounds over the right side posterior axillary fold and below the other each measuring 1cmx3x1/4cm and 2cmx ½ x ½ cm respectively.
6. Two abrasions – one over the back of left elbow measuring 1x1cm and another over the back of lower third of left upper arm measuring 2x1cm.
7. Diffuse contusion noted over the whole of back of left upper arm. Left elbow and left forearm. (Bluish black in colour).
8. Three abrasions over the back of left forearm each measuring 2x1cm
9. Cut wounds over the back of base of left middle and ring fingers each measuring 2cm x ½ x bone deep with cut fracture of the underlining bones.
10. A cut wound over the left side lower part of occipital region of scalp measuring 2cm x 1cm x bone deep.”
She gave opinion that the said injuries could have been caused by weapons like Aruval, knife and wooden logs. She further opined that the death was due to shock and hemorrhage due to the multiple injuries.
7.P.W.19 recovered the blood stained clothes from the body of the deceased and forwarded the same to Court. On 19.10.2005, at 8.00 am, P.W.19 arrested Mr.Sowrirajan (A.1); the juvenile accused Mr.Kumar @ Sivakumar; Kattappu @ Sivakumar and Mr.Manivannan (A.2) in the presence of witnesses. On such arrest, they made voluntary confession statements one after the other. In pursuance of the same, the juvenile accused Mr.Kumar @ Sivakumar produced an Aruval. Similarly, A.1 disclosed in his statement as to where he had hidden the Aruval. In pursuance of the same, he produced the Aruval from the place of hide out. Similarly, the other accused, Mr.Manivannan (A.2) also produced the wooden log.
8. On returning to the Police Station, he forwarded the accused and the material objects to Court. On 17.10.2005, at 2.00 pm, he arrested A.3 & A.4 and forwarded them to Court for judicial remand. On completing the investigation, he laid charge sheet against the accused.
9. Based on the above materials, the trial Court framed charges against the appellants herein, as stated in the first paragraph of this judgment. The appellants denied the same. In order to prove the case of the prosecution, on the side of the prosecution, as many as 19 witnesses were examined and 35 documents were exhibited, besides 12 Material Objects.
10. Out of the said witnesses, P.Ws.1 & 2 have been examined as eye witness. They have stated that at the time of occurrence, when they were passing through the Vijaya Theatre, they heard about some commotion from the place of occurrence. When they rushed to the place of occurrence, according to them, they witnessed the entire occurrence. They have further spoken about the specific overt acts of each of the eight assailants including these appellants/A.1, A.3 & A.4.
P.W.3 has stated that he heard about the occurrence and went to the place of occurrence and he assisted the others to take the deceased to the hospital. P.W.4 has spoken about the preparation of observation mahazar and rough sketch and the recovery of blood stained earth and the sample earth from the place of occurrence. P.W.5, an official from the Tamil Nadu Electricity has Board stated that at the place of occurrence, there was street light and there was no electricity failure at the crucial time of occurrence. P.W.6 has spoken about the photographs taken on the dead body as well as the place of occurrence as directed by the Investigating Officer. P.W.7 has witnessed the arrest of the accused. P.W.8 has stated that around 8.00 pm on 15.10.2005, he heard some commotion from the place of occurrence and thereafter, he saw the deceased being taken to the hospital in an Auto. P.W.9 has stated that he took the deceased to the hospital. He has further stated that when Ex.P.10 was recorded by the Head Constable, he was present and he witnessed the same. P.W.10 has spoken about the death intimation.
P.W.11 – Dr.R.Murugan has stated that at the time of admission, the deceased was conscious and he told that he was attacked by three known persons. He has further stated that the deceased told him that four other persons were in their company. P.W.12 has spoken about the treatment given by him to the deceased at the Government Medical College and hospital at Thanjavur and the death of the deceased. P.W.13 has stated that he took the dead body and handed over the same to the Doctor for post mortem and the recovery of clothes from the dead body of the deceased. P.W.14 has turned hostile and he has not supported the case of the prosecution in any manner. P.W.15 has spoken about the death intimation received from the hospital. P.W.16, the then Judicial Magistrate has spoken about the test identification parade conducted by him in respect of Kumar @ Sivakumar; Sowrirajan; Kattari @ Sivakumar; Jawahar; Manivannan; Surendran; Natarajan and Jegan. According to him, P.Ws.1 & 2 identified all these accused. P.W.17 has spoken about the registration of the case and the investigation done by him. P.W.18 has spoken about the post mortem conducted and her final opinion regarding the cause of death. P.W.19 has spoken about the investigation done and the final report filed.
11. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. On the side of the accused one Mr.Govindaraj was examined as D.W.1. He has stated that during the relevant time, he was working as the Special Sub Inspector of Police at Mannargudi. According to him, he was asked to produce the attendance register and the duty report maintained in the Mannargudi Police Station in respect for the day 15.10.2005. He has stated that such records were not available in the Police Station since, the same were destroyed in the usual course. Thus, the accused did not chose to mark any document on their side. The defence of the accused was a total denial.
12. Having considered all the above materials, the trial Court convicted the appellants/accused 1, 3 & 4 as stated in the first paragraph of this judgment. Challenging the same, the appellants/accused 1, 3 & 4 are before this Court with these Criminal Appeals.
13. We have heard the learned counsel for the appellants and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
14. In this case, the prosecution relies on the eye witness account of P.Ws.1 & 2 and the dying declaration made by the deceased. The earliest dying declaration made by the deceased was to P.W.11 - Dr.Murugan. To Dr.Murugan, the deceased told that he was attacked by three known persons with aruval and there were four other persons in their company. P.W.11 has recorded the same in Ex.P.11, the Accident Register. Thus, according to the earliest statement made by the deceased, the assailants were 7 out of whom three persons were known to him.
15. The next dying declaration is the statement made by the deceased to one Mr.R.Kalyanasundaram, the Head Constable at 10.00 pm on 15.10.2005 vide Ex.P.10. Mr.R.Kalyanasundaram, who recorded the statement has not been examined as witness. No reason whatsoever has been stated for the non examination of the said witness. Ex.P.10 has been marked through the Sub Inspector – P.W.17. Thus, the contents of Ex.P.10 have not been proved in accordance with law. Assuming that this statement was made only by the deceased and it contains the true statement made by him, even then, we find it difficult to believe the same as it is contrary to the evidence of P.W.10. Further, the deceased told that the juvenile accused Kumar @ Sivakumar, cut him with Aruval and one unknown person also cut him with Aruval. It is not explained to the Court as to why in an earlier statement, the deceased had told that the appellants/A.1, A.3 cut him with Aruval were known persons whereas, in the subsequent statement, he has told that two known persons and one unknown person attacked him with Aruval. In these two statements, he has not stated anything about the wooden logs being used by any of the assailants. The statement recorded by P.W.17 from the deceased is the third dying declaration. In the said dying declaration, the deceased has stated that a total number of six persons attacked him. According to this statement, the juvenile accused Kumar @ Sivakumar, Sowrirajan (A.1) Kattappu @ Sivakumar (Juvenile accused) Jawahar (Juvenile accused) and Natarajan (A.4) Surendran (A.3) came with Aruval and wooden logs and attacked him. He has further stated that the juvenile accused, Kumar @ Sivakumar cut him on his head with Aruval. Mr.Sowrirajan (A.1) cut him on the left forearm twice with Aruval. The juvenile accused Kattappu @ Sivakumar cut him with Aruval on his fingers and again he attacked him on the left shoulder with aruval. Jawahar (Juvenile accused) cut him with Aruval on his right forearm and also on his head and right shoulder. The other accused namely A.3 and A.4 surrounded him. Thus, according to this statement, the assailants were 6 in numbers, out of them, four persons attacked him with aruval and two persons had just surrounded him. This dying declaration is quite contrary to the earlier two dying declarations.
16. Now, turning to the evidences of P.Ws.1 & 2, they have mentioned about the participation and specific overt acts of eight persons. According to them, the juvenile accused, Kumar @ Sivakumar; Kattappu @ Sivakumar; Jawahar and Mr.Sowrirajan (A.1) were all armed with aruval and they attacked the deceased with Aruval. They have further stated that Manivannan ( A.2); Surendran (A.3) and Natarajan (A.4) and the juvenile accused Mr.Jegan were armed with wooden logs and they attacked the deceased with the wooden logs.
17. As we have already pointed out, the deceased never told in any of the dying declarations that any of the accused used wooden logs and caused injuries. Thus, the dying declarations are quite contrary to the evidences of P.Ws.1 and 2. P.Ws.1 and 2 have stated that the assailants were 8 in numbers whereas, according to the dying declarations, there is no consistency because, at the earliest point of time, the deceased told that three known persons attacked him. Later on he has stated that two known persons and one unknown person attacked him. In the third dying declaration, he has stated that six known persons attacked him. Thus, there is no consistency at all between the eye witness account of P.Ws.1 & 2 and the dying declarations of the deceased. We have got every doubt about the very presence of P.Ws.1 & 2 at the scene of occurrence. Further, the occurrence had not happened near their house and they have stated that on hearing the commotion, they went to the place of occurrence and witnessed the entire occurrence. Since, their presence was by chance, and because of the above contradictions, we are not able to attach any importance to the evidences of P.Ws.1 & 2. Assuming that the Court could act upon the dying declarations, among these multiple dying declarations, there is no consistency. The deceased should not have gone on improving the version by adding the accused and by adding the weapons and by stating about the overt acts. When there is such inconsistencies, it is difficult to give any weightage to the dying declarations also. We find it difficult to act upon any one of the dying declarations. Therefore, we find it difficult to sustain the conviction. From the facts narrated above, it is inferable that the deceased was alone in the place of occurrence that too during night hours and somebody would have attacked him and the assailants were not known. In such view of the matter, we are inclined to acquit the appellants and to allow these criminal appeals.
18. In the result, these Criminal Appeals are allowed and the conviction and sentence imposed on the appellants/A.1, A.3 & A.4 by the learned District and Sessions Judge, Tiruvarur, in S.C.No.33 of 2008, dated 25.09.2012, are set aside and the appellants/A.1, A.3 & A.4 are acquitted. The fine amount, if any paid, shall be refunded to them. The bail bond, if any, executed by the appellants/A.1, A.3 & A.4 shall stand discharged.
jbm Index: Yes To
1. The District and Sessions Judge, Tiruvarur.
2. The Public Prosecutor, High Court, Madras.
(S.N.J.,) (N.A.N.J.,) 02.01.2017
S.NAGAMUTHU.J.,
AND N.AUTHINATHAN.J.,
jbm
Crl.A.Nos.695, 740 & 754 of 2012
02.01.2017 http://www.judis.nic.in