| SooperKanoon Citation | sooperkanoon.com/965484 |
| Court | Chennai High Court |
| Decided On | Feb-01-2013 |
| Judge | M.JAICHANDREN |
| Appellant | 1.Boopathy |
| Respondent | State by the Deputy Superintendent of Police |
01. 02/2013 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Criminal Appeal (MD).No.560 o”
1. Boopathy 2.Maruthu Pandian .. Appellants/Accused 1 & 2 vs. State by the Deputy Superintendent of Police Nanguneri, Cr.No.26 of 2004 of Thirukurungudi Police Station, Tirunelveli District. .. Respondent/Complainant Criminal appeal is filed under Section 374(2) of Criminal Procedure Code against the conviction and sentence passed by the Second Additional Sessions Judge, Tirunelveli, Tirunelveli District in his S.C.No.81 of 2004 dated 09.10.2007. !For appellants ... Mr.K.Prabhu ^For respondent ... Mr.A.Ramar Additional Public Prosecutor :JUDGMENT (Judgment of the Court was delivered by S.NAGAMUTHU, J) The appellants are the accused in S.C.No.81 of 2004 on the file of the learned Second Additional Sessions Judge, Tirunelveli. Altogether, there were four accused. The other two accused by name Sekar and Kumar were juveniles at the time of occurrence. Therefore, the case against them has been separately dealt with before the Juvenile Justice Board. These two accused alone were tried by the lower Court. They stood charged for offences under Section 302 r/”
34. I.P.C and Section 3(2)(v) of the SC and ST Act. By judgment dated 09.10.2007, the trial Court convicted these accused only under Section 302 r/w 34 I.P.C. They have been acquitted from the second charge i.e 3(2) (v) of the SC & ST Act. They have been sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- each in default to undergo simple imprisonment for two years for the offence under Section 302 r/w 34 I.P.C. Challenging the said conviction and sentence, the appellants are before this Court. 2.When this appeal was taken up today, the learned Senior Counsel for the appellant submitted that the first appellant Boopathy is no more. No interested person has come on record to prosecute the appeal in respect of the first appellant, Mr.Boopathy. Therefore, this appeal stands abated sofar as it relates to the first appellant, Boopathi. So, we proceed to dispose of the appeal only in respect of the second appellant. 3.The facts of the case of the prosecution are as follows:- i)The accused Nos.1 & 2 belong to a community which is not a scheduled caste. The juvenile accused Sekar and Kumar also belong to the same community and the deceased in this case was one Mr.Sasikumar. He belonged to scheduled caste. The first accused Boopathy was working as a load man under the deceased. There was some dispute between them on account of the salary arrears. This is projected to be the motive. ii)Whileso, on 20.02.2004 at about 08.00 a.m, when the deceased was at Malaiyadi Pudur Bus-stand, and proceeding towards north, due to the above motive, the first accused instigated the juvenile accused Kumar to kill him. It is further alleged that the second accused and other juvenile accused Sekar caught the deceased hold. At that time, the juvenile accused Kumar stabbed the deceased with knife. Nobody had witnessed the occurrence. iii)On hearing the alarm raised, P.Ws.1 to 3 and one Perumal had rushed to the place of occurrence and they found the deceased alone with stab injuries. But he was in a position to speak. When P.W.2 enquired him, he told him that the juvenile accused Kumar and the first accused Boopathi had attacked him. Then, they took him to the Government Hospital at Palayamkottai. P.W.7- Dr.Ananthi examined the deceased. The deceased told her that he was stabbed by a known person near Malayadi Pudur Bus-Stand at 7.00 a.m. She noticed the following injuries: "1) 6 cm lengthy -stab wound x 2 cm wide x 4 cm depth bleeding from the wound present.
2) 1 cm x 1 cm x 5 cm cut wound." Ex.P.3 is the Accident Register. She admitted the deceased as inpatient in the hospital. She also sent an intimation to the police. On receipt of the said information, P.W.13 rushed to the hospital. He found the deceased in a conscious state. P.W.1 was by his side. On 20.02.2004 at 12.15 p.m, the deceased gave a statement, which was reduced into writing by P.W.13. P.W.1 has attested the same. Ex.P.1 is the said complaint given by the deceased. On returning to the Police Station, P.W.13 registered a case in Cr.No.26 of 2004 under Sections 342 and 307 I.P.C and Section 3 (2) (5) of the SC & ST Act at 03.00 p.m. Then, he forwarded the First Information Report and the complaint to the Court and then handed over the case diary to the Deputy Superintendent of Police/P.W.17. iv)Taking up the case for investigation, P.W.17, went to the place of occurrence, prepared an observation mahazar and a rough sketch in the presence of witnesses. He examined P.Ws.1 to 4 and recorded their statements. Whileso, the deceased died on 21.02.2004 at 9.00 a.m. On receiving the intimation from the hospital, P.W.17 altered the case into one under Sections 342 and 302 I.P.C and Section 3(2) (5) of the SC & ST Act. Then, he conducted inquest on the body of the deceased. Then he forwarded the body for post mortem. Dr.Rajesh-P.W.16 conducted post mortem on the body of the deceased on 21.02.2004 at 02.00 p.m. He noticed the following injuries:- "Recent abrasions seen over the following ares:
1. 14 x 1.5 cm horizontal abrasion seen on the right side of neck, 8 cm below the right mastoid. 1 x .5 cm seen on the lower part of outer aspect of right side of chest, 14 cm below the right mid-axillary line. 1 x .5 cm seen on the inner aspect of left palm close to the base of litter finger. 3 x 2 cm grazing abrasion seen on the back of outer aspect of upper third of left forearm. 1 cm long semi lunar abrasion seen on the top of left deltoid convexity facing the neck.
2. Horizontal stab wound 5 x 1 cm seen on the right side of front of abdomen. It is 6 cm away from the umbilicus and 21 cm below the right nipple. The inner end of wound is pointed and the outer end is blunt. On dissection, it has pierced the ascending colon, transverse colon, mesentery and right quadratus lamborum muscle and ends as a point on the right side of L4, L5 vertebral level. The rent in the ascending colon and transverse colon were found surgically sutured. Retroperitoneal Hematoma about 500 gms noted around the duodenum, hepatic flexure, ascending colon up to the cecum, right kidney and the root of mesentery. The direction of the wound is backwards and inwards. The wound tract is 15 cm in length.
3. 1 x .25 cm x .5 cam stab wound seen on the upper part of outer aspect of right side of abdomen, 20 cm below the anterior axillary fold.
4. 22 cm long right par median sutured surgical wound seen in the abdomen." Ex.P.18 is the postmortem certificate. He opined that the deceased would appear to have died of external injuries and its corresponding internal injuries. vi)Continuing the investigation, PW17, obtained community certificate for the accused as well as the deceased. He examined the Tahsildhar, who issued the certificate and finally, he laid charge-sheet against the accused. 3.As we have already pointed out, the case against juvenile accused Kumar and Sekar was tried by the Juvenile Justice Board. This Court was informed that the Juvenile Justice Board has acquitted both the juveniles. 4.The trial court framed appropriate charges against the appellants/accused as stated in the first paragraph of the judgment. They denied the charges. Therefore, they were put on trial. In order to prove the case of the prosecution, on the side of prosecution as many as 17 witnesses were examined and 21 documents were exhibited, besides 3 material objects. 5.Out of the above witnesses, Pw.1 has stated about the complaint given by the deceased to P.W.13. P.W.2 has stated about the immediate statement made by the deceased to him. P.Ws.3 and 4 have turned hostile. P.W.7-Dr.Anandhi has stated about the statement made by the deceased and the treatment given by her. P.W.16 has spoken about the cause of death and P.W.17 has spoken about the investigation. 6.When the above incriminating circumstances were put to the accused under Section 313 Cr.P.C, they denied the same as false. However, they have not chosen to examine any witness or to mark any document on their side. 7.Having considered the above materials, the trial court convicted these appellants/accused under Section 302 r/w 34 I.P.C That is how, the accused are before this Court. 8.We have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent and perused the records carefully. 9.In this case, the prosecution relies only on circumstantial evidences. There are three dying declarations available on record. The earliest dying declaration is the oral dying declaration made by the deceased to P.W.2 as soon as he was attacked by the accused. Even in the chief-examination, P.W.2 had stated that on 20.02.2004, when he heard some noise, he rushed to the place of occurrence and found the deceased lying with stab injuries. When, he enquired the deceased, he told him that he was attacked by the first accused Boopathy and the juvenile accused Kumar. That is the earlier dying declaration available on record. Thereafter, he was taken to the hospital. The deceased told P.W.7-doctor that he was attacked by a known person. That is the 2nd dying declaration made by the deceased to P.W.7 and the same has also been duly entered in Ex.P.3, Accident Register. The third dying declaration is by way of complaint made to P.W.13 in the presence of P.W.1. In the said dying declaration, the deceased had stated that to enable the juvenile accused, to stab him, the second accused helped him. In our considered opinion, since there are inconsistencies among these three dying declarations, we have preferred to give credence to the earliest dying declaration. In the said dying declaration, he had not stated even about the presence and participation of the 2nd accused herein. Even in the 2nd dying declaration also, he did not state anything about him. He had stated that he was assaulted by one known person. In the 3rd dying declaration only, the deceased had stated that these accused only helped the juvenile accused, who only made attack on him. Had it been true that the second accused participated in the occurrence, the deceased would have told the same to P.W.1 at the earliest opportunity followed by this statement to the doctor. Therefore, we are unable to give credence to Ex.P.1. Thus, we find that the prosecution has failed to prove the case against the second accused. 10.In the result, the appeal is allowed and the conviction and sentence imposed, against the 2nd appellant/2nd accused, by the learned Second Additional Sessions Judge, Tirunelveli, Tirunelveli District, in S.C.No.81 of 2004, dated 09.10.2007 are set aside and he is acquitted from the charges. This appeal stands dismissed as abated insofar as the first appellant is concerned. The Bail bond executed by the 2nd appellant shall stand cancelled. Fine amount, if any paid by the 2nd appellant shall be refunded to him. vs To 1.The Second Additional Sessions Judge, Tirunelveli, Tirunelveli District. 2.The Deputy Superintendent of Police Nanguneri, Thirukurungudi Police Station, T irunelveli District. 3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.