Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.08.2015 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE Mr.JUSTICE V.S.RAVI Crl.A(MD)No.549 of 2008 1.Sethu Baskaran @ Nagu 2.Muthammal .Appellant/Accused Nos.1 & 2 versus The State rep.
by the Inspector of Police, Thiruppullani Police Station, Ramanathapuram District.
(Crime No.48 of 2007) .Respondent/Complainant PRAYER Criminal Appeal filed under Section 374 of Cr.P.C.against the conviction and sentence, dated 28.03.2008, made in S.C.No.98 of 2007, by the Principal Sessions Judge, Ramanathapuram.
For appellants : Mr.R.Murugappan, Legal Aid Counsel For respondent : Mr.A.Ramar, Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was made by S.NAGAMUTHU, J.) There are two appellants in this appeal.
They are accused Nos.1 & 2 in S.C.No.98 of 2007 on the file of the learned Principal Sessions Judge, Ramanathapuram.
They stood charged for the offences under Sections 302 r/w 34 IPC.
By judgment dated 28.03.2008, the trial Court convicted them under Section 302 r/w 34 IPC and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for one year.
Challenging the said conviction and sentence, the appellants are before this Court with this appeal.
2.The case of the prosecution in brief is as follows; (a)The deceased in this case was one Rajalakshmi.
Her husband was one Mr.Sathiah Nadar.
PW1 is the brother of Mr.Sathaiah Nadar.
In respect of the land dispute, there was misunderstanding between the family of the deceased and that of the accused.
The accused 1 & 2 are the husband and wife respectively.
On 11.02.2007 at 12.00 p.m., according to the case of the prosecution, PW1 and the deceased were proceeding towards the house of one Kathiresan.
At that time, it is alleged that the fiRs.accused came there and shouted at PW1.
He scolded him stating that he would kill PW1.
On seeing him, the deceased by gesture told PW1 to leave the place.
The second accused was also present with an aruval at the time of occurrence.
She instigated the fiRs.accused.
Suddenly, the fiRs.accused took out an aruval and attacked the deceased with aruval on her shoulder, back of her head, wrist and cheek.
Lastly, he cut on the abdomen of the deceased.
After the occurrence, both the accused fled away from the scene of occurrence.
(b)Immediately, PW1 and others took the deceased to the hospital.
PW8 - Dr.Krishnamoorthi examined the deceased.
At that time, the deceased was fully conscious.
When PW8 enquired, the deceased told him that she was assaulted by four known male persons using aruval at 10.00 a.m.at her house at Medalodai Village.
He found the following injuries: ?.(1) A lacerated injury on the right chest measuring 4x 0.1 x 0.5 cm.
(2) A lacerated injury on the right arm measuring 6 x 2 x1 cm.
(3) A lacerated injury on the right forearm exposing the tendos about 6 x 8 x 4 cm.
(4) A lacerated injury upto the right shoulder measuring 14 x 14 x 10 cm.
(5) A lacerated injury over the abdomen 14 cms length exposing the intestine with injury in the internal intestine.
(6)Bleeding from all the above wounds.?.
Ex.P10 is the Accident Register.
PW8 admitted her as inpatient.
Around 1.10 p.m., she succumbed to the injuries.
The death intimation was duly sent from the Government Hospital to the Police Station.
(c) On receiving the intimation from the Hospital authority, PW20 - the Sub inspector of Police, attached to Tirupulani Police Station, went to the hospital and recorded the statement of PW1 and on returning to the Police Station, at 3.30 p.m.he registered a case in Crime No.43 of 2007 under Section 302 IPC.
Ex.P19 is the FIR.
He forwarded the FIR and the complaint to the Court and handed over the investigation to the Inspector of Police (PW21).(d) PW21 took up the case for investigation, proceeded to the place of occurrence and prepared an observation mahazar and a rough sketc.showing the place of occurrence.
He recovered bloodstained earth and sample earth from the place of occurrence, in the presence of PW13 and another witness.
He conducted inquest on the body of the deceased on 12.02.2007.
He examined PW4 and few more witnesses.
Then, he forwarded the body for postmortem.
(e) PW10 - Dr.Rajkumar, an Assistant Surgeon at Government Headquarters Hospital, Ramanathapuram, conducted autopsy on the body of the deceased at 11.00 p.m.on 12.02.2007.
He noticed the following external injuries: ?.(1).Cut injury over the abdomen 6 x 2 x 3 cm through the cut injury the abdominal contents were exposed Cut injury extends from the umbilicus to the left side of the abdomen.
(2)Lacerated wound over the right arm 2 x 1 x 1 cm.
(3)Cut injury over the right shoulder 4 x 4 x 2 cm extends from the right shoulder to the interior bones of scafula.
(4)Cut injury over the right side of cheek 1 x 1 x 1cm.?.
Ex.P12 is the Postmortem Certificate.
He gave opinion that the death was due to shock and haemorrhage due to the injuries.
(f) Continuing the investigation, PW21 arrested the accused on 12.02.2007 at 10 .30 a.m.at Kalimankuttai Village in the presence of PW15 and another witness.
On such arrest, the fiRs.accused gave a voluntary confession, in which he disclosed that he had hidden an aruval at Kalathumedu.
In pursuance of the confession, he took the Police and PW15 to the said place and produced the aruval from the hide out.
PW22 recovered the same under mahazar.
On returning to the Police Station, he forwarded the accused to the Court for judicial remand.
He forwarded the material objects to the Court and then, through Court, to the Forensic Lab for chemical examination.
According to the report, the bloodstained earth was found on the aruval.
He collected the medical records, examined doctors and other witnesses.
Finally, he laid charge sheet against the accused.
(g) Based on the above materials, the trial Court has framed a charge under Section 302 r/w 34 IPC.
The accused denied the same.
In order to prove the case, on the side of the prosecution, as many as 21 witnesses were examined, 21 documents were exhibited and 7 material objects were marked.
(h) Out of the said witnesses, PW1 has vividly spoken about the entire occurrence.
PW2 is the husband of the deceased.
He is also an eyewitness to the occurrence.
He has also spoken about the entire occurrence.
He has signed in the complaint to attest the signature of PW1.
PW3 is the daughter of the deceased, who has also spoken about the entire occurrence.
PW4 is a neighbour of the deceased.
He has also spoken about the entire occurrence.
PW5 is a Chemical Analyst, who has spoken about the analysis conducted on the dress materials, earth and weapons.
PW6 is the Scientific Assistant, who has also spoken about the same facts.
PW7 is the Head Clerk of the Court, who forwarded the material objects to the Lab on the orders of the learned Magistrate.
PW8 Dr.
Krishnamoorthy has spoken about the admission of the deceased in the hospital, treatment given and the death.
PW9 is another Scientific Assistant in the Regional Forensic Lab, who spoken about the analysis conducted on the material objects.
PW10 has spoken about the postmortem conducted by him.
(i) PW11 has spoken about what he heard.
Thus, his evidence is not relevant.
PW12 has spoken about the dispute relating to the land between the two families.
PW13 has spoken about the preparation of the observation mahazar and recovery of material objects from the place of occurrence.
PW14 is an auto driver, who carried the deceased to the hospital from the place of occurrence.
PW15 is an witness in whose presence the accused were arrested and the aruvals were recovered on the disclosure statement of the fiRs.accused.
PW16 has spoken about the preparation of observation mahazar and recovery of material objects.
PW17 has spoken about the arrest of the accused, confession of the fiRs.accused and the consequential recovery.
PW18 is a Constable, who carried the FIR from the Police Station to the Court.
PW19 is a Constable, who carried the body from the place of occurrence to the hospital for postmortem.
PW20 has spoken about the registration of the case.
PW21 has spoken about the investigation done.
(j) When the above incriminating materials were put the accused under Section 313 of Cr.P.C., they denied the same.
On their side, the fiRs.accused himself examined as DW1.
In his evidence, he has stated that his name is Sedhu Baskaran.
He has simply denied the entire occurrence.
He has produced certain documents showing his ownership for the property in dispute.
(k) Having considered all the above materials, the trial Court convicted both the accused and accordingly punished them, as detailed in the fiRs.paragraph of this judgment.
That is how they are before this Court with this appeal.
3.
During the pendency of this appeal, the second appellant passed away and thus, this appeal stands abated so far as it relates to the second appellant/second accused is concerned.
For the fiRs.appellant/A1, the learned counsel, who was on record, withdrew his appearance and therefore, we appointed Mr.R.Murugappan, as Legal Aid Counsel to argue the case of the fiRs.appellant.
We have heard him and the learned Additional Public Prosecutor appearing for the State.
We have also perused the records carefully.
4.The learned counsel for the appellant/A1 would submit that the evidences of PWs.1 to 4, the so called eyewitnesses, cannot be believed for the simple reason that the deceased, at the earliest point, without there being any chance for tutoring, had told the doctor that she was attacked by four known male persons at 10.00 a.m.at Medalodai Village.
According to the learned counsel, this statement of the deceased falls within the ambit of Section 32 of the Indian Evidence Act as dying declaration.
This dying declaration, according to the learned counsel, completely belies the evidence of PWs.1 to 4 that the occurrence was happened at Kuthukalvalasai Village at 12.00 noon and the deceased was attacked by one known male and one known female person.
Thus, according to the learned counsel, the appellant is entitled for acquittal.
5.The learned Additional Public Prosecutor would, however, submit that there is no proof that the deceased was fit enough to make such a dying declaration.
He would further submit that according to PW1, the deceased died at 1.20 p.m., whereas the above statement to the doctor was made at 1.00 p.m.Therefore, according to him, the deceased would not have been in a position to speak at all.
Thus, according to the learned Additional Public Prosecutor, no weightage can be given to the above statement made by the deceased to the doctor, whereas the weightage should be given to the evidences of PWs.1 to 4 which are duly corroborated by the medical evidence.
6.We have considered the above submissions.
Admittedly, the deceased was taken to the hospital only by PW1 and PW2.
There is no evidence that she would have been tutored in the meanwhile.
At 1.10 p.m.PW8 - Dr.Krishnamoorthi found her fully conscious.
We do not find any reason to disbelieve the evidence of the doctor.
He has categorically stated that he was told by the deceased herself that she was assaulted by four known male persons.
Similarly, she told that she was attacked by all the four known persons with aruval, that too at 10.00 a.m.at Medalodai Village.
Since this is the earliest statement of the deceased relating to the cause of death, in our considered view, it squarely falls within the ambit of Section 32 of the Indian Evidence Act as dying declaration.
Since this being the earliest statement and falling under Section 32 of the Indian Evidence Act, we do not find any reason to reject the same.
7.
The learned Additional Public Prosecutor would submit that since the deceased died at 01.20 p.m., at 01.00 p.m.she would not have been in a position to speak.
But there is no medical records produced by the prosecution to prove the same.
Even PW8 - Dr.Krishnamoorthi has not spoken about the time of death.
It is only PW1, who has stated that the deceased died at 1.20 p.m.Admittedly, PW1 is a villager and therefore, we cannot give meticulous importance to the said timing stated by PW1.
At any rate, since it is for the prosecution to prove the case beyond reasonable doubts, we cannot expect the accused to prove the contrary.
It is sufficient for an accused to probabilise his defence.
In the case, from the medical evidence of PW8, it is crystal clear that the deceased was conscious at the time when she made the above statement.
Thus, we do not find any reason to reject the said statement, which is a dying declaration being the earliest statement.
If this is given weightage, as a corollary, we have to reject the evidence of PWs.1 to 4, who have stated in one voice that the occurrence was at 12.00 noon and the deceased was attacked by one male and one female person, that too at Kuthukalvalasai Village.
Since these witnesses are interested witnesses and since the major contradictions between the dying declaration and the evidence of these eyewitnesses have not been explained away by the prosecution, we are bound to give the benefit of doubts arising out the same in favour of the accused.
In view of the same, we are inclined to acquit the fiRs.appellant/A1.
8.
In the result, this Criminal Appeal stands dismissed as against the second appellant/A2 as abated.
This Criminal Appeal stands allowed insofar as it relates to the fiRs.appellant/A1 is concerned and the conviction and sentence imposed on the fiRs.appellant/fiRs.accused is set aside and he is acquitted.
The bail bond, if any, executed by him shall stand terminated.
The fine amount, if any, paid shall be refunded to him.
9.
The service rendered by Mr.R.Murugappan, Legal Aid Counsel, is appreciated.
The legal Services Authority is directed to pay his remuneration, for which he is entitled to.
To 1.The Principal Sessions Judge, Ramanathapurram.
2.The Inspector of Police, Thiruppullani Police Station, Ramanathapuram District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..