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Balasubramani and Others Vs. State rep. by its Inspector of Police, Kodaikanal - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberCriminal Appeal (MD) No. 110 of 2014
Judge
AppellantBalasubramani and Others
RespondentState rep. by its Inspector of Police, Kodaikanal
Excerpt:
.....that regard there was a dispute between the deceased makudeeswaran and the accused. when the 2nd accused marimuthu tried to cut the trees, the deceased prevented him. thereafter, due to the intervention of pw-1, poombaraiyandi, the accused was allowed to cut the trees. thereafter, the accused failed to surrender possession of the agricultural land to the deceased, even after the expiry of lease period. thereafter one pandi, pw-4 claimed to have taken contractor of kungiliyam trees, tried to cut the trees and the same was prevented by the deceased. the 2nd accused marimuthu claimed that he has purchased the disputed land. on 19.12.04 at about 3 p.m, the accused 2 and 4 namely marimuthu and kannan respectively came to the house of pw-1 and asked him about his son-in-law makudeeswaran. at.....
Judgment:

(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C to call for the records and set aside the judgment dated 05.02.2014 passed in S.C.No.169 of 2009, on the file of the learned Additional District and Sessions Judge, Dindigul and acquit the Appellants/Accused from all the charges leveled against them.)

M.V. Muralidaran, J.

1. The appellants are the accused No:1 to 5 in S.C.No.169/2009 on the file of the Additional District and Sessions Judge, Dindigul. The trial court framed charges for the offence under Sections 147, 148, 302 r/w 34, 506 (2) of I.P.C against this Appellants/Accused 1 to 5, under section 326 of I.P.C against the accused 1, 2, 4, and 5 and under section 341 of IPC against the accused No:3.

2. The Trial Court by Judgment dated 5.2.2014 convicted and sentenced the appellants/accused 1 to 5 under Section 148 of I.P.C to undergo three years rigorous imprisonment, further convicted and sentenced the accused 1 to 5 under Section 302 of I.P.C to undergo Life Imprisonment and imposed fine each Rs.1,000/-, in default to undergo six months simple imprisonment, further he found that the Accused No.3 is guilty, convicted and sentenced her to suffer one month rigorous imprisonment, further he found that the accused No s 3 to 6 are guilty, convicted and sentenced them to suffer seven years rigorous imprisonment. The Learned Judge has acquitted the accused 1 to 5 from the charge for the offence under section 506 (2) of I.P.C. The sentences imposed are ordered to run concurrently. Challenging the said conviction and sentence passed against them, the present appeal has been filed by the appellants/accused 1 to 5.

3. The case of the prosecution is that the deceased Makudeeswarn is the husband of PW-3 Murugamani, son-in-law of PW-1 Poombaraiyandi and PW-5 Thayanidi and brother of PW-2 Ramakrishnan. The deceased Makudeeswarn owns agricultural land measuring an extent of 4 acre at Thalaikalasam Village. Out of the said total extent of 4 acre, he leased 2 acre and 30 cent to Marimuthu. The said Marimuthu Servai instead of doing agricultural operation, he cultivated and planted Kungiliyam Trees. In that regard there was a dispute between the deceased Makudeeswaran and the accused. When the 2nd accused Marimuthu tried to cut the trees, the deceased prevented him. Thereafter, due to the intervention of PW-1, Poombaraiyandi, the accused was allowed to cut the trees. Thereafter, the accused failed to surrender possession of the agricultural land to the deceased, even after the expiry of lease period. Thereafter one Pandi, PW-4 claimed to have taken contractor of Kungiliyam Trees, tried to cut the trees and the same was prevented by the deceased. The 2nd accused Marimuthu claimed that he has purchased the disputed land. On 19.12.04 at about 3 p.m, the accused 2 and 4 namely Marimuthu and Kannan respectively came to the house of PW-1 and asked him about his son-in-law Makudeeswaran. At that time PW-1 and PW-5 are available in the house. The accused were informed that the deceased Makudeeswaran has gone out and so, they left the house of PW-1. Later, the deceased came to the house and at that time PW-2 also came there. At about 5 p.m, PWs-1 and 2 on the way to cattle shed field and the deceased Makudeeswaran was going in front of them with Cattles. At that time 3rd accused Eswari waylaid the deceased and other accused 1, 2, 4 and 5 suddenly appeared before the deceased from the nearby bush. The 1st accused was having knife and he stabbed the accused on his right index middle. The 2nd accused caused cut injury on the right neck of the deceased with Aruval and the accused 4 and 5 also have stabbed the deceased. All the accused have indiscriminately stabbed the deceased with knife and aruval and caused injuries all over the body. When the PW-1 to PW-3 shouted and attempted to prevent the accused from murdering the deceased, the 2nd accused shown Aruval to PW-1 and threatened him with dire consequences. Thereafter, the accused disappeared from the scene of occurrence. For the murder of the deceased Makudeeswaran, his father-in-law came to Kodaikanal Police Station along with the brother of the deceased, PW-2 and gave Ex-P1 complaint and the respondent police has registered a case against the accused in Cr.No.446/2004 for the offences under sections 147, 148, 302 r/w 34, 506 (2) and 326 of I.P.C of IPC.

4. After filing the charge sheet before the Learned District Munsif cum Judicial Magistrate, Kodaikkannal has committed to the Additional District and Sessions Judge, Dindigul and came to be numbered as S.C.No.169/2009. In this case, 17 witnesses were examined as prosecution side witnesses and 28 Exhibits were marked on the side of prosecution and there are 21 material objects produced before the Trial court. There was one witness and three exhibits were marked on the side of the accused as defense witness and document.

5. In this case, PW-1 Poombaraipandi deposed that the deceased Makudeeswarn is his son-in-law, brother of PW-2 Ramakrishnan and the husband of PW-3 Murugamani. The PW-3 Murugamani is the daughter of PW-1 and she was given marriage to the deceased. PW-1 is an agriculturist. The deceased Makudeeswarn owns agricultural land measuring an extent of 4 acre at Thalaikalasam Village. Out of the said total extent of 4 acre, he leased 2 acre and 30 cent to Marimuthu. The said Marimuthu Servai instead of doing agricultural operation has cultivated and planted Kungiliyam Trees. In that regard there was a dispute between the deceased Makudeeswaran and the accused. When the 2nd accused Marimuthu tried to cut the trees, the deceased prevented him. Thereafter, due to the intervention of PW-1, Poombaraiyandi, the accused was allowed to cut the trees. PW-1 informed the accused that the dispute will be shorted out after he was returning from Sabarimalai. Thereafter, the accused failed to surrender possession of the agricultural land to the deceased, even after the expiry of lease period. Thereafter one Pandi, PW-4 claimed to have taken contractor of Kungiliyam Trees, tried to cut the trees and the same was prevented by the deceased. The 2nd accused Marimuthu claimed that he has purchased the disputed land. On 19.12.04 at about 3 p.m, the accused 2 and 4 namely Marimuthu and Kannan respectively came to the house of PW-1 and asked him about his son-in-law Makudeeswaran. At that time PW-1 and PW-5 are available in the house. The accused were informed that the deceased Makudeeswaran has gone out and so, they left the house of PW-1. Later, the deceased came to the house and at that time PW-2 also came there. At about 5 p.m, PWs-1 and 2 on the way to cattle shed and field and the deceased Makudeeswaran was going in front of them with Cattles. At that time 3rd accused Eswari waylaid the deceased and other accused 1, 2, 4 and 5 suddenly appeared before the deceased from the nearby bush. The 1st accused was having knife and he stabbed the accused on his right index middle. The 2nd accused caused cut injury on the right neck of the deceased with Aruval and the accused 4 and 5 also have stabbed the deceased with deadly weapon. All the accused have indiscriminately stabbed the deceased with knife and aruval and caused injuries all over the body. When the PW-1 to PW-3 shouted and attempted to prevent the accused from murdering the deceased, the 2nd accused shown Aruval to PW-1 and threatened him with dire consequences. Thereafter, the accused disappeared from the scene of occurrence. The PW-1 immediately brought his daughter PW-3 to his house. Thereafter, PW-1 went to Kodaikanal Police Station along with the brother of the deceased, PW-2 by taking Lorry from Poombarai and reached the police station at 12 p.m and gave Ex-P1 complaint. PW-1 also identified M.O. 1 to M.O. 3 in the court.

6. PW-2 Ramakrishnan, who is the brother of the deceased and PW-3 Murugamani, who is the wife of the deceased have deposed the same version as that of PW-1.

7. PW-4 Pandi deposed that he was taken contract of trees from the 2nd accused Marimuthu. He further stated that there was a dispute between the deceased and Marimuthu with regard to cutting of Kungiliyam tree.

8. PW-5 deposed that she is the wife of PW-1 and mother of PW-3 and mother-in-law of the deceased Makudeeswaran. She further stated that there was a previous enmity between the deceased and Marimuthu with regard to land. She further deposed that she had seen the accused when she was going to see the body.

9. PW-6 deposed that 1st accused Balasubramani was arrested in his presence and the signature in Ex-P3 confession statement is that of his signature. He also signed in Ex-P2 Mahazar. PW-7 deposed that he is the witness in Ex-P4 confession statement of accused Nos:2 to 5. PW-10 deposed that in his presence M.O. 1 to M.O. 9 were recovered and he signed in the recovery Mahazar and observation Mahazar Ex-P11 and Ex-P12.

10. The PW-12 Dr.L.Subramani who conducted post mortem of the deceased and submitted post mortum report Ex-P-13 deposed that the deceased would appear to have died due to shock and hemorrhage due to the injuries sustained 20 to 24 hours prior to autopsy.

11. The PW-16 Dr.Vijayalakshmi, the Medical Officer of Kodaikanal Government Hospital deposed that on 20.12.2004, he treated the 1st accused who was admitted by the head constable and constable. At that time, the 1st accused was conscious and he was treated as out patient. She further stated that for the injuries sustained by the 1st accused, she issued Ex-P16 wound certificate and injury is simple in nature.

12. The PW-17 Muthukaruppan deposed that he is the investigation officer of Cr.No.446/2004. After taking investigation of the above said crime, on 20.12.2004 he visited the place of occurrence. Since the place of occurrence is in dark, PW-17 stayed there and commenced his investigation at 6 a.m and prepared Rough Sketch Ex-P17 and he recovered M.O.Nos: 5 to 9 in the presence of witnesses under Mahazar 18. He conducted inquest enquiry and he prepared inquest report Ex-P19.He further deposed that on the same day, he searched the accused, at 1 p.m in Kodaikanal Mannavanoor Main Road at Poombari Kaikatti, he arrested the 1st accused and obtained Ex-P20 confession statement. Thereafter on 21.12.2004, in Kodaikanal Mannavanoor Main Road at Kookkal PW-17 arrested accused Nos:2 to 5 and obtained their confession statement in Ex-P22. He also recovered M.O.Nos:16 to 18.

13. The DW-1 Senthilkumar deposed that he is working in Sub-Registrar Office of Kodaikanal. The property comprised in survey number 1113/2 was registered vide document No.1551/1996 for Kookkal village in the office on 26.08.1996. The said sale deed is marked as Ex-D1A, The others Sale Deed Dated 24.01.1989 executed by the Subbayee ammal was marked as Ex-D1.

14. On the evidence taken by the trial court namely Additional District and Sessions Judge, Dindigul came to the conclusion that the charges laid against all the accused were proved by the direct evidence led by the prosecution.

15. In the above circumstance that there is direct eye witness, the learned Trial Judge convicted the accused 1 to 5 for the offences under section 147, 148, 302 r/w 34, 506 (2), 326 and 341 of I.P.C holding that the prosecution case was proved beyond all reasonable doubt. Against the said conviction, the present appeal has been filed.

16. We have heard Mr.Ashok Kumar, learned senior counsel for Mr.M.Jegadeesh Pandian, learned counsel for the appellants and Mr.K.S.Durai Pandian, learned Assistant Public Prosecutor for the respondent and we have also perused the records carefully.

17. In this case, we have to see whether the prosecution has proved the case beyond reasonable doubt or not?. According to the prosecution, PW-1 to PW-3 is stated to be the occurrence witnesses. The PW-1 is the son-in-law, PW-2 is the brother, PW-3 is the wife of the deceased respectively. Now on examination of the evidence of PW-1 Poombaraipandi, it is revealed that there was a dispute between the deceased Makudeeswaran and the accused Marimuthu family with regard to cutting of Kungiliyam trees. According to PW-1, the land belongs to the deceased and it was leased to 2nd accused Marimuthu. But, 2nd accused Marimuthus says that he has purchased the land in dispute under a registered sale deed Ex-D2 dated 26.8.96 from the mother of the deceased namely Subbammal, the deceased Makudeeswaran and his brother on behalf of his minor son, the 1st accused Balasubramani. At the same time, in order to prove the lease, on the side of the deceased no document was produced. In this regard, the trial court has given a finding that PW-4 Pandi was examined and the lease was proved from his evidence. We can t accept the findings of the trial court for the reason that PW-4 Pandi never stated anything about in his evidence that the land in question was leased to Marimuthu by the deceased. A perusal of his evidence shows that he has taken contract of the trees standing in the land. Therefore, in our opinion, as per sale deed Ex-D2 the accused are the owners of the land and that is the reason, PW-4 was given contract of the trees standing in the land. Hence, the evidence of PW-4 is not helpful to the case of the prosecution.

18. Further, PW-1 says that at the time of occurrence, he along with PW-2 and PW-3 were present. The PW-1 to PW-3 is close blood relatives of the deceased. The PW-3 is the wife of the deceased. If really, they were present in the scene of occurrence, definitely they would have attempted to prevent the attack on the deceased. Further, PW-1 to PW-3 stated that after the deceased fell down, all the three were left from the scene of occurrence. No one will leave the place of occurrence, simply leaving the deceased when the deceased being the close relative of PW-1 to PW-3. Therefore, there is a force in the argument of the Learned Counsel for the appellants that the presence of PWs 1 to 3 in the scene of occurrence is doubtful. We have to hold that the prosecution failed to prove that PWs 1 to 3 are the occurrence witnesses.

19. That apart, there is lot of discrepancies with regard to the vehicle used by PW1 and PW2 and the presence of PW-2 in the police station while lodging complaint. In this regard, PW-1 stated that he and PW-2 went to Kodaikanal police station by catching a lorry at Poombarai and PW-1 gave complaint and he signed in the complaint Ex-P1. Except PW-1 no one signed in Ex-P1 complaint. But, PW-2 says that after the occurrence, he and PW-1 came to Kaikatti by walk and took a cart and they went to police station. PW-2 further stated that he also signed in Ex-P1 complaint. Apart from that in Ex-P1 complaint, one head constable Murugaiah put his signature and the same was admitted by PW-17 Investigation Officer. But there was no explanation by the prosecution as to why Head Constable Murugaiah signed in Ex-P1. The non-examination of Murugaiah in this case, has weakened the case of the prosecution.

20. Further, with regard to identification of recovery of Knifes M.O.13, 18 and 21, PW-1 stated that he is not sure about which of the knife was used by the accused. Therefore, the recovery of M.O.Nos: 13, 18 and 21 is doubtful. That apart, the 1st accused Balasubramani sustained injury and the same was not properly explained by the prosecution. The non-explanation of the injury sustained by the 1st accused is a fatal to the prosecution case.

21. In this regard, it is the settled legal preposition that the prosecuting agency can t shut its eyes to probe into the injuries sustained by the 1st accused. The basic principles in criminal jurisprudence would be the injury of the accused must be explained by the prosecution, when this mandatory requirement is not complied with, it would create serious doubt over the case of the prosecution. In this regard, it is useful to refer the Judgment of the Hon ble Apex Court reported in AIR 1976 SC 2263, wherein it is held that the prosecution ought to have explained the injuries sustained by the accused. The non-explanation of the injuries sustained by the 1st accused is a fatal to the case the prosecution.

22. In this case, the prosecution has failed to get separate confession statement from accused No: 2, 3, 4 and 5. The confession statement of 2nd accused can t be used as confession statement for other accused also. In this case, the prosecution also has not examined the Forensic Assistant and the non-examination of the Forensic Assistant is a fatal to the prosecution case. Therefore, in this case, the investigation by PW-17 is not proper. The trial court also held that the investigation by the Inspector of Police is not proper; however, held that merely because of certain discrepancies in the investigation, the entire case of PWs 1 to 3 can t be rejected. We are not in agreement of the said finding. In a criminal case, the prosecuting agency must prove all the circumstances by leading cogent and correct evidence.

23. For the reasons stated above, we are constrained to come to the inevitable conclusion that the impugned judgment of conviction is unsustainable and accordingly, the appeal is allowed and the conviction and sentence imposed on the appellants by the learned Additional District and Sessions Judge, Dindigul in S.C.No.169/2009 dated 2.2.2014 are hereby set aside.

24. In the result, the criminal appeal is allowed and conviction and sentence imposed on the appellants are hereby set aside and the appellants are acquitted and they are directed to be set at liberty forthwith unless their presence is required in connection with any other case. Fine amount paid if any by the appellants shall be refunded to them.


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