Raja @ Chellaraja and Others Vs. State rep. by the Inspector of Police, Madurai District - Court Judgment

(Prayer: Criminal Appeals are filed under Section 374 of the Code of Criminal Procedure, 1973, against the Judgment dated 29.10.2013 passed in Sessions Case No.18 of 2010 by the First Additional District and Sessions Court, Madurai.)

Common Judgment

A. Selvam, J.

1. These Criminal Appeals have been directed against the convictions and sentences dated 29.10.2013 passed in Sessions Case No.18 of 2010 by the First Additional District and Sessions Court, Madurai.

2. The case of the prosecution is that due to previous animosity on 03.05.2009 at about 07.40 p.m., in Nehru Nagar, Vilangudi in front of the house of one Periyasamy, the second accused has abetted the first accused to murder the deceased by name Karuppasamy. The first accused has tried to attack the deceased Karuppasamy and at that time one Muthu has tried to deter him, but the second accused has caught hold of him. The first accused has attacked one Bhuvaneswari and thereby caused injury on her person. During the course of occurrence, the third accused has caught hold of Bhuvaneswari. The first accused has indiscriminately attacked the deceased and due to his overtacts, he passed away. After occurrence, the injured eye witness by name Bhuvaneswari has given a complaint and the same has been registered in Crime No.932 of 2009.

3. On receipt of the complaint, Investigating Officer (P.W.17) has taken up investigation, examined connected witnesses and also made arrangements for conducting autopsy on the body of the deceased and accordingly Dr.Natarajan, viz., P.W.12 has conducted autopsy on the body of the deceased and he found the following external and internal injuries:

1) An oblique stab injury 2 cms x 0.5 cm x pleural cavity deep noted on the front of left side of chest, 4 cms above and lateral to left nipple.

On dissection the wound passes obliquely backwards and downwards, piercing the underlying muscles, vessels, nerves in the 3^rd intercostals space piercing the underlying pleura and upper lobe of left lung measuring 1.0 cm x 0.5 cm x 1 cm and ends as a point. Left pleural cavity contains 200 ml of blood with clots. Right pleural cavity empty.

2) An oblique stab injury 1 cm x p.5 cm x 1 cm along with the muscle plane noted on the front of upper part of right side of chest.

3) Incised wound 6 cms x linear x skin deep noted on the inner aspect of upper 3rd of left forearm.

Note:

All the stab injuries are having regular margins and both ends are pointed.

OTHER FINDINGS:

Peritoneal cavity empty. Pleural cavities described. Pericardium contains 15 ml of straw colour fluid. Heart both chambers empty. Lungs left lung described in injury column, cut section pale. Right lung cut section pale. Larynx and trachea normal. Hyoid bone intact. Stomach contains 200 gms of partly digested semi solid cooked food materials, nil specific smell, mucosa pale. Liver, spleen and kidneys cut section pale; Small intestine contains 20 ml of bile stained fluid. Nil specific smell, mucosa pale; Bladder empty; Brain surface vessels pale, cut section pale .

The Postmortem Certificate has been marked as Ex.P.6. After transfer of P.W.17, P.W.18, Inspector of Police has continued investigation and after his transfer P.W.19, Inspector of Police has laid a final report on the file of the Judicial Magistrate Court No.II, Madurai and the same has been taken on file in P.R.C.No.67 of 2009.

4. The Judicial Magistrate No.II, Madurai after considering the fact that the offences alleged to have been committed by the accused are triable by Sessions Court, has committed the case to the Court of Sessions, Madurai Division and taken on file in Sessions Case No.18 of 2010 and subsequently made over to the Trial Court.

5. The Trial Court after hearing arguments of both sides and upon perusing the relevant records, has framed first charge against the second accused under Sections 302 read with 109 of the Indian Penal Code, second charge against him under Section 341 of the Indian Penal Code, third charge against the first accused under Section 307 of the Indian Penal Code, fourth charge against the third accused under Sections 307 read with 34 of the Indian Penal Code and fifth charge against first accused under Section 302 of the Indian Penal Code and the same have been read over and explained to them. The accused have denied the charges and claimed to be tried.

6. On the side of the prosecution, P.W.1 to P.W.19 have been examined and Ex.P.1 to P.19 and M.O.1 to M.O.6 have been marked.

7. When the accused have been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against them, they denied their complicity in the crime. No oral and documentary evidence have been let in on the side of the accused.

8. The Trial Court, after hearing arguments of both sides and upon perusing the relevant evidence available on record, has found the first accused guilty under Sections 307 of the Indian Penal Code and sentenced him to undergo seven years rigorous imprisonment and also imposed a fine of Rs.1,000/- with usual default clause. Further he has been found guilty under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and also imposed a fine of Rs.1,000/- with usual default clause. The Trial Court has found the second accused guilty under Section 341 of the Indian Penal Code and sentenced him to undergo one month simple imprisonment and also imposed a fine of Rs.500/- with usual default clause. Further he has been found guilty under Sections 302 read with 109 of the Indian Penal Code and sentenced to undergo imprisonment for life and also imposed a fine of Rs.1,000/- with usual default clause. The third accused has been found guilty under Sections 307 read with 34 of the Indian Penal Code and sentenced to undergo seven years rigorous imprisonment and also imposed a fine of Rs.1,000/- with usual default clause. Against the convictions and sentences passed by the trial Court, Criminal Appeal(MD)No.46 of 2014 has been preferred by the accused 2 and 3. Likewise, against the convictions and sentences passed by the Trial Court, Criminal Appeal(MD)No.65 of 2014 has been preferred by the first accused.

9. Since common questions of law and facts are involved in both Criminal Appeals, Common Judgment is pronounced.

10. The consistent case of the prosecution is that prior to occurrence, an animosity has been in existence between the accused and deceased and in pursuance of the same and also with intention to murder the deceased on 03.05.2009 at about 07.40 p.m. in Nehru Nagar, Vilangudi in front of the house of one Periyasamy, the second accused has instigated the first accused to murder the deceased. The second accused has deterred one Muthu. The first accused has attacked the de facto complainant by using a knife. Likewise he attacked the deceased indiscriminately by using the very same knife and due to his overtacts, the deceased has passed away. Further during the course of occurrence the second accused has caught hold of the de facto complainant viz., Bhuvaneswari at the time of attack made by the first accused.

11. The de facto complainant has been examined as P.W.1. The other eye witnesses have been examined as P.W.2 and P.W.3. The doctor who conducted necropsy has been examined as P.W.12 and he marked Ex.P.6. The doctor who has first seen both P.W.1 and deceased has been examined as P.W.14 and he marked Ex.P.11.

12. The Trial Court after considering the evidence adduced by the witnesses mentioned supra coupled with relevant documents has invited convictions and sentences against all the accused as mentioned in the Judgment.

13. The learned counsel appearing for the appellants/accused has raised the following points so as to set aside the convictions and sentences passed by the Trial Court against the appellants/accused:

(i) The specific case of the prosecution is that the entire occurrence has takenplace in front of the house of one Periyasamy. But for the reasons best known to the prosecution he has not been examined and non-examination of the said Periyasamy is fatal to prosecution case.

(ii) The specific case of the prosecution is that at the time of occurrence, the second accused has instigated the first accused by way of saying to stab the deceased, but second accused is not aware of the fact that the first accused is having a knife at the time of occurrence.

(iii) No specific charge has been framed against the third accused so as to attract Sections 307 read with 34 of the Indian Penal Code and further the evidence adduced on the side of the prosecution is that during the course of occurrence the third accused has caught hold of one Kalimuthu (P.W.3).

14. To controvert the contentions putforth on the side of the appellants/accused, the learned Additional Public Prosecutor has contended that even though the occurrence has takenplace in front of the house of one Periyasamy, since he has not seen the occurrence, he has not been examined and his mere non-examination would not create any suspicion in the case of the prosecution. Further only at the instigation alleged to have been made by second accused, the first accused has attacked the deceased by using a knife indiscriminately and to that effect the prosecution has adduced replete evidence and therefore the convictions and sentences passed by the Trial Court do not warrant interference.

15. For considering the rival submissions made on either side, the Court has to analyze each and every charge.

16. The first and foremost charge framed against the second accused is that at the time of occurrence, the second accused has instigated the first accused by way of saying to stab the deceased. Under the said circumstances the second accused has faced a charge under Sections 302 read with 109 of the Indian Penal Code.

17. As adverted to earlier, the injured eye witness/de facto complainant has been examined as P.W.1. The other eye witnesses have been examined as P.W.2 and P.W.3 and all of them have consistently stated in their evidence that in the place of occurrence, the second accused has instigated the first accused to stab the deceased.

18. The contention putforth on the side of the appellants/accused is that the second accused has not known the fact that first accused is having knife at the time of occurrence. Since on the side of the prosecution trustworthy evidence is available for the purpose of proving that second accused has instigated first accused, the contention putforth on the side of the appellants/accused to the effect that second accused has not known the fact that first accused is having knife at the time of occurrence cannot be accepted and further to attract Section 109 of the Indian Penal Code, merely uttering words would be sufficient. Therefore the first charge framed against second accused under Sections 302 read with 109 of the Indian Penal Code has been clearly established on the side of the prosecution. Under the said circumstances, the second contention putforth on the side of the appellants/accused cannot be accepted.

19. The second charge framed against the second accused is that during the course of occurrence the first accused has tried to attack the deceased and the same has been deterred by one Muthu, but the second accused has caught hold of him. For the purpose of proving the said charge, the said Muthu has been examined as P.W.1 and another eye witness by name Kalimuthu has been examined as P.W.3. Both of them have consistently stated in their evidence that in the place of occurrence, the second accused has caught hold of P.W.2. Therefore, the second charge framed against the second accused has also been proved on the side of the prosecution.

20. The third charge framed against the first accused is that at the time of occurrence, the first accused has tried to murder the de facto complainant by name Bhuvaneswari and thereby caused an injury. Under the said circumstances he is said to have committed an offence punishable under Section 307 of the Indian Penal Code.

21. It is seen from Ex.P.11 that P.W.1, the de facto complainant has sustained only a simple injury on her left little finger. Considering the place on which P.W.1 has sustained injury and also its nature, this Court is of the view that first accused can be punished only under Section 324 instead of 307 of the Indian Penal Code.

22. The fourth charge framed against the third accused is that at time of occurrence the third accused has caught hold of the de facto complainant viz., P.W.1 and therefore she is said to have committed an offence under Sections 307 read with 34 of the Indian Penal Code. For proving the fourth charge framed against the third accused under the said Sections, absolutely there is no evidence on the side of the prosecution. But on the other hand, the prosecution witnesses (eye witnesses) have clearly stated to the effect that the third accused has caught hold of P.W.3, Kalimuthu. But to that effect, no charge has been framed. Under the said circumstances, the third accused cannot be mulcted with the liability under Sections 307 read with 34 of the Indian Penal Code and therefore the third accuse is entitled to get acquittal of the charge framed against her.

23. The fifth charge framed against the first accused is that at the time of occurrence the first accused has indiscriminately attacked the deceased viz., Karuppasamy and due to his overtacts he passed away. For the purpose of proving the said charge, the eye witnesses namely P.W.1 to P.W.3 have given clear/trustworthy evidence. In fact there is no infirmities in the evidence given by P.W.1 to P.W.3. Further the evidence given by P.W.1 to P.W.3 are clearly corroborated by medical evidence by way of examining the doctor, who conducted autopsy (P.W.12) coupled with Ex.P.6, Postmortem Certificate. Therefore the fifth charge framed against the first accused has been clearly proved on the side of the prosecution.

24. The first and foremost contention putforth on the side of the appellants/accused is that even though the specific case of the prosecution is that the occurrence has takenplace in front of the house of one Periyasamy, but he has not been examined. As rightly pointed out on the side of the prosecution, absolutely there is no evidence that the said Periyasamy has witnessed the occurrence and therefore he need not be examined. Therefore the first contention putforth on the side of the appellants/accused goes out without merit.

25. It has already been pointed out that the charges framed against the second accused under Sections 302 read with 109 and 341 of the Indian Penal Code have been clearly established on the side of the prosecution. The charge framed against the first accused under Section 307 of the Indian Penal Code can be converted into Section 324 of the Indian Penal Code. Further the charge framed against him under Section 302 of the Indian Penal Code has been clearly established on the side of the prosecution. The charge framed against the third accused has not at all been established nor proved on the side of the prosecution and therefore the third accused is entitled to get acquittal. With the above modifications, these Criminal Appeals are liable to be allowed in part as stated infra.

26. In fine,

(i) Criminal Appeal(MD)No.46 of 2014 is allowed in part and the convictions and sentences passed against the second accused under Sections 302 read with 109 and 341 of the Indian Penal Code by the Trial Court are confirmed and the Trial Court is directed to take appropriate steps so as to imprison the second accused to serve out the remaining period of sentence. The conviction and sentence passed against the third accused under Sections 307 read with 34 of the Indian Penal Code by the Trial Court are set aside and third accused is acquitted. Bail bonds if any executed by her shall stand cancelled and fine amount if any paid by her is ordered to be refunded forthwith.

(ii) Criminal Appeal(MD)No.65 of 2014 isallowed in part and the conviction and sentencepassed against the appellant/first accused underSection 302 of the Indian Penal Code by the TrialCourt are confirmed. The conviction and sentencepassed against him by the Trial Court under Section307 of the Indian Penal Code is converted intoSection 324 of the Indian Penal Code and sentencedto undergo two months rigorous imprisonment. Nomodification in respect of fine amount.