(Prayer : Criminal Appeal filed under Section 374 of the Code of Criminal Procedure, to call for the records and to set aside the Judgment and sentence, dated 30.08.2013 imposed in S.C.No.14 of 2008 on the file of the District and Sessions Court, Thiruvarur.
Criminal Appeal filed under Section 454 of the Code of Criminal Procedure, to call for the records and to set aside the Judgment dated 30.08.20134 imposed in S.C.No.14 of 2008 on the file of the District and Sessions Court, Thiruvarur and return the M.O.4, Tata Sumo to the appellant.)
P. Kalaiyarasan, J
1. Crl.A.No.608 of 2003 is directed against the Judgment of the District and Sessions Judge of Tiruvarur, dated 30.08.2013 in S.C.No.14 of 2008, convicting and sentencing the accused for the offence including Section 302 IPC and sentenced as mentioned in the Judgment therein, including life imprisonment.
2. Another appeal has been preferred by A1 in Crl.A.No.60 of 2014 against the order of confiscation of the Tata Sumo vehicle in the above Judgment.
3. A4, Malaravannan passed away during the pendency of the case before the trial Court and therefore, other accused, namely, A1, A2, A3 and A5 faced the trial.
4. Since both the appeals arise out of the same Judgment, common Judgment is delivered.
5. The brief facts of the case of the prosecution are as follows :
(i) The deceased Subramanian and A1, Rathinam are brothers. A2 to A4 are sons of A1 and A5 is A4's father-in-law. Both A1 and deceased families had prior enmity. Subramanian's daughter Tamilmozhi was married to Nagarajan. He is running a fertilizer shop in Kuppachikottai. Due to enmity between the families, A2 set up a fertilizer shop, just opposite to the shop of the above Nagarajan.
(ii) P.W.2, Veerapandian, brother of Nagarajan was running a tempo. When he took a customer to a shop adjacent to Nedumaran's shop to purchase cement, Nedumaran's brother Ezhilarasan (A3) questioned him and beat him by pulling his shirt at 7 p.m on 29.04.2004. Then he went to his brother's house. He told about the incident to his father, brother Nagarajan and Subramanian, who were in the house. They asked Veerapandian to lodge a complaint with the police. He lodged a compliant next day.
(iii) For the enquiry on that compliant on 01.05.2004 at 10.30 a.m, deceased Subramanian, P.W.2, Nagarajan and Ramalinga Devar went to the Paramakottai Police Station. A1 to A3 went to the police station in a Tata Sumo vehicle. There was a wordy altercation between two groups inside the police station. Police asked them to go out and settle the issue amicably and then come inside. When they were going out of the station, A1 was murmuring something, for that deceased Subramanian retorted. When they were coming out, A4 and A5 also came in a motor cycle. A5 pulled Subramanian's shirt and pushed him down. A1 to A4 brought the weapons from Tata Sumo vehicle.
(iv) P.W.1 and others shouted and immediately P.W.3, Mr.Vinayagamoorthy and P.W.4, Mr.Jagannathan, Sub-Inspectors of Police and other police personnel also came from the police station. Bringing the bill hooks from Tata Sumo vehicle, A2 cut Subramanian on his left hip. At that time, A3 cut him with bill hook on the head; A1 cut him with bill hook on the leg and right hand; A4 cut him with bill hook on his leg. P.W.1 to P.W.4 and P.W.8 witnessed the occurrence. When P.W.2 attempted to interfere the attack made by Malarvannan, P.W.2 sustained injury on his forehead.
(v) The accused threatened all including the police people and therefore, P.W.3 took his revolver and shot in the air. A4 and A5 escaped with their motor bike. The police caught hold of A1 and A2. A3 also left the place with bill hook. The deceased Subramanian and P.W.2 were immediately rushed to the Government Hospital, Mannargudi. P.W.1, lodged the complaint, Ex.P.1.
(vi) P.W.15, Dr.Chitra examined Subramanian, S/o Rangasamy, brought by P.W.2 at 12.40 p.m on 01.05.2004 and he could not speak. She found a cut injury on the left frontal head to the extent of 26x3x2 cms and immediately she referred him to Thanjavur Medical College Hospital.
(vii) P.W.2 was treated for his injuries by P.W.15 as out patient vide O.P.Chit, Ex.P.20. P.W.2 took the deceased to the Thanjavur Medical College Hospital by Ambulance; but Subramanian died on the way and therefore, P.W.2 brought back to the Government Hospital, Mannargudi. P.W.15, the Doctor at 2.55 p.m saw Subramanian brought dead and kept the body in mortuary. The AR copy issued by the Doctor is Ex.P.16.
(viii) P.W.3, Sub-Inspector of Police recorded Ex.P.1 Statement of P.W.1 and registered the case. He also recovered the bill hooks in the hands of the accused 1 and 2, nabbed in the spot. P.W.17, Sundararajan, the Deputy Superintendent of Police, took up investigation and recovered pistol and bill hooks and also the blood stained banian under Form-95 (Ex.P.4). He sent FIR, Ex.P.3 to the Court through P.W.12, Head Constable. After receipt of intimation about the death, Section was altered and alteration report, Ex.P.24 was sent. He also prepared observation mahazar in the presence of P.W.9 and other witness. He also recovered blood stained soil, original soil and chappals from the place of occurrence under mahazar. He held inquest in the presence of panchayatdars and prepared Inquest Report, Ex.P.25. He sent A1 and A2 to the Hospital for treatment to the injuries sustained by them. P.W.15 examined them and found abrasions and issued wound certificates, Ex.P.18 and Ex.P.19. After examination, they were sent to the Court for remand.
(ix) The Deputy Superintendent of Police examined the witnesses and recorded their statements. A3, who surrendered before the Court was taken to police custody and the confession statement given by him was recorded. The admissible portion of the confession statement is Ex.P.11. Pursuant to the confession statement, he took the DSP and the witnesses to Sundarakottai village, Katteri Convoy and took out the bill hook, M.O.3 from a bush and handed over. The same was recovered by the DSP in the presence of the witnesses under mahazar.
(x) P.W.5, Dr.Kalimuthu conducted autopsy and found the following injuries.
"External injury :
1. A cut injury extending left side frontal region to partial, occipital region of head size 26cm x 3cm x 7cm exposing fractured skull bone and injured Brain. Blood clot present in the wound.
2. A cut injury on left side of Loinsize 9cm x 3cm x 4cm exposing cut muscles blood clot present.
3. A linear alteration upper outer aspect of left arm size 5cm x 0.5 cm.
4. A cut injury in the palmar aspect of base left index finger size 2cm x 1cm x 1.5cm.
5. A cut injury in the palmar aspect base of Right index, middle and ring fingers size 2cm x 1cm x 1.5cm.
6. A cut injury posterior and lower aspect of Right leg size 3cm x 2cm x 2 cms.
Internal Examination :
Uniform. No organ bowael injury, No blood collection, stomach normal with 100ml of partially digested food.
On Opening Thorax :
No fracture in ribs, Heart 275 gms ? chambers empty; c/s appears pale.
Lungs : Right lung 500 gm left size 450 gms c/s appears pale, Hyoid bone intact, Liver normal size and shape weight 1400 gms. Spleen 150 gms normal shape size on c/s pale.
Kidney : Right Kidney 160 gms, left kidney 140 gms. On C/s pale scalp-A Scalp injury no fracture corresponds to fracture of left fronto, partial and occipital bones. All Brain membranes found cut along line of wound left fronto, partial and occipital region of brain cut injury size 15cm x 3cm x 5cm with blood clot, Brain weight 1200 gms, soft consistancy on S/c pale, spinal column intact. Post mortem concluded at 6.15 pm on 01.05.2004. Death would appears to occurred two to six hours prior to postmortem."
The Doctor is of the opinion that the deceased would appear to have died of shock due to injury to vital organ Brain and Haemorrhage.
(xi) P.W.16, R.D.O, conducted enquiry regarding shooting and filed his report. The police custody sought for by the DSP with respect to A4 and A5 was rejected by the Court. The properties recovered were sent for chemical examination and they were examined by the Forensic Sciences Department and reports have been sent, which were marked as Ex.P.6, Ex.P.7 and Ex.P.15. After examination of witnesses, the DSP laid charge sheet in this case.
6. During trial, the prosecution examined 17 witnesses and marked 27 Exhibits, apart from 13 material objects were marked. The accused were questioned under Section 313 (1) Cr.P.C as to the incriminating evidence appeared against them by the trial Court and they denied the offence. The hand writing expert was examined as D.W.1 and through him report, Ex.C.1 has been marked.
7. The learned Trial Judge, after analysing the evidence, found the accused / A1 to A3 and A5 guilty, convicted them under Section 148 IPC and sentenced to undergo three years Rigorous Imprisonment; under Section 302 IPC and sentenced to undergo life imprisonment and also to pay a fine of Rs.1000/- and in default to undergo six months Rigorous Imprisonment; under Section 506 (II) IPC and sentenced to undergo five years Rigorous Imprisonment and convicted A1 to A3 under Section 353 IPC and sentenced to undergo two years Rigorous Imprisonment and convicted A3 and A5 under Section 225 IPC and sentenced to undergo 7 years Rigorous Imprisonment and also to pay a fine of Rs.1000/-, in default to undergo six months Rigorous Imprisonment; under Section 188 IPC, sentenced to undergo six months Rigorous Imprisonment; under Section 201 IPC sentenced to undergo three years Rigorous Imprisonment and also to pay a fine of Rs.1000/-, in default to undergo six months Rigorous Imprisonment. The sentences were ordered to run concurrently.
8. Against the said Judgment, all the accused filed Crl.A.No.608 of 2013 challenging the conviction and sentence imposed on them and A1 filed Crl.A.No.60 of 2014 for return of the vehicle, Tata Sumo challenging the confiscation of the same.
9. The learned Senior counsel appearing for the appellants strenuously argued that there is correction in the complaint, Ex.P.1 with respect to the names of the accused and it is a fabricated document and therefore, the entire case of the prosecution cannot be believed; that though the names of A4 and A5 were not found in the FIR, they were subsequently falsely included in this case and therefore, the evidence of all the eye witness are to be discarded as false; that though the occurrence took place in a public place, none of the independent witnesses have been examined; that injuries sustained by A1 and A2 have not been explained by the prosecution; that damages to the vehicle has been suppressed by the prosecution and that there is contradiction with respect to the number of assailants between the Doctor and eye witnesses and therefore, the appellants are entitled to get the benefit of doubts.
10. The learned Additional Public Prosecutor per contra contends that correction in Ex.P.1 does not amount to fabrication of documents in the light of the entire contents of the complaint that FIR need not contain the entire occurrence precisely; that the documents immediately forwarded to the Judicial Magistrate contain all the particulars including the names of all accused involved in the crime; that injuries sustained by the accused have been explained through the prosecution witnesses though injuries are only abrasions and that the learned trial Judge has rightly analysed the entire evidence and found the accused guilty of the offences.
11. A4 passed away during the trial. The appellants herein are A1 to A3 and A5. The occurrence took place just opposite to the Paravakottai police station in the day light, i.e., at 11.30 am. The first accused and deceased are brothers. The second and third accused are the sons of first accused and 4th appellant / 5th accused is their in-law, i.e., father-in-law of the third son of the first accused. There was prior enmity between the families of the accused and the deceased. Due to such enmity, A2 set up a fertilizer shop just opposite to the fertilizer shop of the daughter of the first accused.
12. P.W.2, Veerapandian, who was plying tempo went to the nearby shop of A2 to take cement bags for a customer at 7 p.m on 29.04.2004. A3, who was in the fertilizer shop of A2 pulled his shirt and threatened him questioning how he introduced his customer to a neighbouring shop. P.W.2, Veerapandian, lodged a compliant, Ex.P.2, dated 29.04.2004. CSR was given on 30.04.2004. When the parties were asked to come for an enquiry, the deceased, P.W.1, P.W.2 and the accused party went to the police station on 01.05.2004 at about 10.30 a.m. When there was wordy altercation between the parties inside the police station they were sent out with an instruction to settle the dispute amicably among themselves and then come inside. When they were going out of the police station, A4 and A5 also came in a motor cycle, A5 pulled A1's shirt and pushed him down saying to kill him. Immediately A1 to A3 brought the bill hooks kept in the M.O.4, Tata Sumo vehicle and attacked the deceased Subramanian. A2 cut him on the left hip; A1 cut him on the right thigh; A3 cut him on the head. One Malarvannan (A4) also attacked on his leg. When the deceased obstructed with his hand the attack made by A1, he also sustained injury on the right hand.
13. P.W.1 and P.W.2 witnessed the entire occurrence. On hearing the alarm about the attack, P.W.3 and P.W.4, Sub-Inspectors of Police and P.W.8, Head Constable and other police personnel came out from the police station and witnessed the occurrence. When they came out and saw, the deceased fell down on the floor and A1 to A4 attacked him with bill hooks, while A5 shouted to kill him. The version of the above eye witnesses could not be assailed in any way through cross-examination. The eye witnesses have in unison narrated the occurrence without any material contradiction. In this case, P.W.2 also sustained injury on his eye brow in the occurrence and the O.P.chit is marked as Ex.P.20. P.W.15, the Doctor also says that she treated P.W.2 as out patient. It is the case of the prosecution that when he interfered the attack by A4, he sustained injury. P.W.2 speaks about the same.
14. Though P.W.1 and P.W.2 are related to the deceased, P.W.3, P.W.4 and P.W.8, who are police officials have clinchingly deposed about the overt act made by A1 to A3. With respect to A5, these witnesses say that during the occurrence, he shouted to close the deceased. But P.W.1 and P.W.2, as already pointed out have deposed that A5 pulled the shirt of the deceased and pushed him down and thus, he only started the occurrence.
15. This Court have carefully analysed the evidence of the above eye witnesses and is fully satisfied that the evidence of eye witnesses are natural, cogent, believable and acceptable.
16. The injuries found on the deceased by the Postmortem Doctor (P.W.5) also corroborate the version of the eye witnesses. When the police attempted to interfere, the accused threatened them, having the bill hooks in their hands. Since the situation was worse, P.W.3, took his revolver and shot in the air, so as to bring the situation under control. Only after that with great difficulty, the police could arrest A1 and A2 by using force.
17. P.W.4 has deposed that only they could arrest A1 and A2 after some struggle by snatching away bill hooks from them and only in the course of such struggle A1 and A2 sustained injuries. P.W.15, the Doctor who examined A1 and A2 has deposed that she found on A1 (i) abrasion on the left little finger measuring 2x1 cm and (ii) a contusion on left upper hand measuring 3x2 cm and on A2, she found abrasions on the backside of left palm measuring 4x1 cm and 3x1 cm and (ii) a contusion on the left index finger measuring 2x2 cm. The above injuries are simple and it had been inflicted in the hands of A1 and A2. Therefore, the above evidence of P.W.4 that the above injuries were sustained by the accused when the bill hooks were snatched away from them by the police by using force is natural and acceptable. This aspect is also a corroborative factor to the version of the eye witnesses.
18. Though A3 surrendered before the Court, he was taken to police custody by Investigating Officer and pursuant to his confession statement, a bill hook was recovered under mahazar, Ex.P.12 in the presence of P.W.10. No doubt the above weapon was recovered from a bush in open place. The evidence of above mahazar witness could not be shattered in any way during cross-examination. Recovery of weapon pursuant to the confession statement from A3 is also a corroborative factor of his involvement in the crime.
19. According to the eye witnesses, the police could arrest only A1 and A2 after much struggle and the other accused, namely A3 to A5 fled away from the scene of occurrence. As already pointed out, the motive attributed for the occurrence has also been established by producing the petition, Ex.P.2, which was given by P.W.2 on 30.04.2004 about the assault made on 29.04.2004 at 7 p.m by A3 on P.W.2. Therefore, from the above discussions, it is clear that the prosecution has established the occurrence through the eye witnesses corroborated with other factors.
20. The contention of the learned Senior counsel appearing for the appellants that only the names of A1 to A3 are found in FIR and therefore, the other accused have been subsequently implicated is not acceptable. No doubt, complaint, Ex.P.1 and the alteration report, Ex.P.24 do not bear the names of A4 and A5. The occurrence took place at 11.30 a.m on 01.05.2004. The FIR as well as Alteration Report reached the Judicial Magistrate on the same day. Inquest was conducted by the Investigating Officer on the same day and the report, Ex.P.25 reached the Judicial Magistrate on the very next day i.e., on 02.05.2014. This Inquest Report contains names of all the accused. Immediately after the occurrence, P.W.1 gave the statement, Ex.P.1 and the same was registered as FIR. A murder occurred in front of the police station and to control the situation, the Sub-Inspector of Police had to shoot in the air. Therefore, in such a situation, P.W.1, son of the deceased gave the above statement in a tense mood. Under such a circumstances, one cannot expect to narrate the entire occurrence precisely. That apart, FIR is only to set law in motion and it need not contain the entire narration of the occurrence. The Inquest Report, which also reached the Court on the very next day contains the names of all the accused. The police officials who witnessed the occurrence also spoke about the involvement of all the accused. Therefore, the above contention of the learned Senior counsel appearing for the appellants is not sustainable.
21. Another contention of the learned Senior counsel appearing for the appellants is that there is correction in Ex.P.1, the complaint regarding the names of A2 and A3, namely Nedumaran and Ezhilarasan. It is argued that even as per the evidence of handwriting expert, D.W.1 and his report, Ex.C.1, correction is proved. A cursory reading of Ex.P.1 and the FIR, Ex.P.3 discloses that the correction regarding the names in the first portion of the complaint does not lead to infer that the above names have been subsequently added or the above document has been fabricated one. The reason is that the names of Nedumaran and Ezhilarasan find place in the subsequent portion of the same compliant without any correction. The FIR immediately registered on the basis of the above complaint does not have any such correction. Therefore, the above contention regarding correction is sans merit.
22. It is also pointed out by the learned Senior counsel appearing for the appellants that P.W.15, Doctor who initially examined the deceased says in her evidence that the person accompanied the deceased told her that the deceased was attacked by one assailant; but as per the prosecution, the number of assailants differ from the version of the Doctor.
23. The learned Additional Public Prosecutor appearing for the respondent cited the Judgment of the Hon'ble Supreme Court in P.Babu v. State of A.P reported in 1994 SCC (Cri) 424 and contended that the wound certificate does not necessarily amount to a statement. In this Judgment, it has been held as follows :
"6... It is a matter of common knowledge that such entry in the injury certificate does not necessarily amount to a statement. At that stage the doctor was required to fill up that column in a normal manner and it was not the duty of the doctor to enquire from the injured patient about the actual assailants and that the inquiry would be confined as to how he received the injuries namely the weapons used etc..."
In this case on hand, though there are several injuries, P.W.15, Doctor who initially saw the deceased and referred to Medical College Hospital, Thanjavur, noted only one injury, though the deceased had several injuries as noted down by the Postmortem Doctor. Therefore, the casual way of filling up the column in the medical certificate does not amount to recording a statement of either the injured or the accompanying person. Based on the above Judgment of the Hon'ble Supreme Court, the contention of the learned Senior counsel appearing for the appellants is to be brushed aside.
24. Another contention of the learned Senior counsel appearing for the appellants is that the trial Court has not framed the charges with particulars as to the time, date and place of occurrence. This Court perused the charges framed by the trial Court. It does not contain the time, date and place of the occurrence.
25. The learned Senior counsel appearing for the appellants cited the Judgment of the Hon'ble Supreme Court in Main Pal v. State of Haryana, reported in (2010) 10 SCC 130 and contended that due to error in charge, failure of justice has occasioned and therefore, the appellants are entitled to be acquitted. In the above Judgment, it has been held as follows :
23. The court having charged the accused with the offence of having trespassed into the house of Prakashi Devi with the intent to assault her and having further charged him for having assaulted the said Prakashi Devi by outraging her modesty, convicts him on the ground that though he did not assault or outrage the modesty of Prakashi Devi, he had outraged the modesty of Sheela Devi, that would lead to failure of justice. There was a material error in the charge as it violated the requirement of sub-section (1) of Section 212 of the Code, that the charge shall contain particulars as to the person against whom the offence was committed.
24. There were two women present at the house at the time of the alleged incident, namely, Prakashi Devi and her daughter-in-law Sheela Devi. In view of the specific charge, the accused concentrated on showing that the charge was false. He did not attempt to meet the case made out in the trial that the offence was against Sheela Devi. The accused was thus clearly misled by the error in the charge which caused prejudice to the accused thereby occasioning failure of justice..."
26. Therefore, it is to be seen whether any prejudice has been caused to the accused occasioning failure of justice in this case. The charge sheet was laid in this case by the Investigating Officer specifying the date, time and place of occurrence. The copy of the same was furnished under Section 207 Cr.P.C to all the accused. All the accused faced committal proceedings and in the order of committal, the learned Judicial Magistrate, mentioned the above particulars and the copy of the same has also been furnished to all the accused. The entire trial proceeding was proceeded for the offences including murder occurred in front of the Paravakottai Police station at 11.30 a.m on 01.05.2004. The accused also cross-examined all the witnesses as to the scene of crime, time and date. Therefore, no prejudice has been caused to the accused to occasion any failure of justice in this case. Thus, the above contention of the learned Senior counsel for the appellants has no merit.
27. It is also contended that no independent witness has been examined. In this case apart from P.W.1 and P.W.2, police officials have been examined as eye witness, as the occurrence took place in front of the police station. Nothing has been attributed as against the said police officers to depose as against the accused during cross-examination. Therefore, the above contention as to the non-examination of the independent witness is not sustainable.
28. Yet another contention of the learned Senior counsel appearing for the appellants is that the prosecution has suppressed the damages caused to the vehicle. The Tata Sumo vehicle was seized and produced as Material Object. There is no suppression of any fact of damage. When two parties came to the police station for an enquiry, trouble arose and deceased was murdered in front of the police station and to bring the situation under control at that time, the police had to shoot in the air and in such circumstances, the vehicle was damaged. Therefore, the contention that damages to the vehicle has been suppressed by the prosecution is not acceptable.
29. As per the evidence of the eye witnesses, offences under Section 148 and 506 (ii) IPC have been established. The eye witnesses have in unison deposed that the accused 1 to 3 threatened the police officials with the bill hooks in their hands and detered the public servants from discharging their duties. As per the evidence of the police officials, accused 3 and 5 resisted their apprehension and therefore, the prosecution has established the offence under Section 353 IPC against A1 to A3 and offence under Section 225 IPC against A3 and A5. P.W.3 and P.W.4 have deposed that the accused 3 and 5 disobeyed their direction and threatened public as well as police with dire consequences. Therefore, the offence under Section 188 IPC as against them has been established. As per the evidence of the police officials, A3 and A5 caused disappearance of evidence of offence. They could recover from A3 only the bill hook without blood stain from a bush and from A5, the weapon could not be recovered and accordingly, the offence under Section 201 IPC has been established. Therefore, the prosecution has established all the offences charged against them.
30. As far as the vehicle, M.O.4 is concerned, the trial Court confiscated the vehicle to the State. As per the evidence of P.W.1 and P.W.2, it is clear that the assailants picked the bill hooks from the vehicle and attacked. Therefore, the weapons, namely bill hooks were brought in the vehicle, M.O.4. Since the vehicle has been used to bring the weapons for the occurrence, the trial Court has rightly confiscated the vehicle.
31. The trial Court has rightly found all the accused guilty and convicted them. This Court does not find any reason to interfere with the conviction and sentence of the trial Court and accordingly, these Criminal Appeals are liable to be dismissed.
In fine, both these Criminal Appeals are dismissed, confirming the Judgment of conviction and sentence, dated 30.08.2013 imposed on the appellants / accused in S.C.No.14 of 2008 on the file of the District and Sessions Court, Thiruvarur. Since the accused are on bail, the trial Court shall take steps to secure the appellants / accused and commit them to prison to serve the remaining portion of sentence.