Appealers challenged conviction for grievous hurt and assault. High Court rejected the claim that informant's hostile testimony and witness injuries rendered the case doubtful. Conviction upheld as prosecution proved common intention to attack.
Appeals dismissed; conviction and sentence of appellants A-2 to A-4 confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07.07.2017 CORAM:
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH AND THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
CRL.A.(MD).Nos.466 and 469 of 2016
1.P.Arivazhagan
2.A.Murugan
: Appellant/Accused Nos.2 and 3 in Crl.A.(MD).No.466/ 2016 S.Kalaiselvan
: Appellant/A4 in Crl.A.(MD).No.469/2016 Vs.
The State Rep. by its
The Deputy Superintendent of Police, Cheranmahadevi Sub-Division Munnerpallam Police Station, Tirunelveli District. : Respondent in both the Appeals
PRAYER: Appeals filed under Section 374(2) Cr.P.C. to call for the records of the case in S.C.No.76 of 2013 on the file of the II Additional District and Sessions Judge (PCR), Tirunelveli, dated 09.11.2016 and allow these appeals and acquit the appellants from the charge by setting aside the impugned judgement, dated 09.11.2016.
For Appellants in both appeals : Mr.A.R.Jeya Ruthiran for
Mr.M.Jegadeesh Pandian
For Respondent in both appeals : Mr.R.Ramachandran
Additional Public Prosecutor.
| Orders Reserved on | 04.07.2017 |
|---|---|
| Orders Pronounced on | 07.07.2017 |
COMMON JUDGMENT
Aggrieved over the conviction and sentence passed by the learned II Additional District and Sessions Judge (PCR), Tirunelveli, in S.C.No.76 of 2013, dated 09.11.2016, the appellants, who are arrayed as A-2 to A-4 in the Trial Court, have filed the present appeals. The appellants/A-2 to A-4 have been https://hcservices.ecourts.gov.in/hcservices/ convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- in default, one month simple imprisonment for the offence under Section 452 IPC; sentenced to
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undergo rigorous imprisonment for 18 months and to pay a fine of Rs.1,000/- each in default, three months simple imprisonment for the offence under Section 324 r/w 34 IPC and sentenced to undergo rigorous imprisonment for 18 months and to pay a fine of Rs.1,000/- each in default, three months simple imprisonment for the offence under Section 324 r/w 34 IPC. The Appellants/A-2 and A-3, have been convicted and sentenced to undergo rigorous imprisonment for six months for the offence under Section 342 IPC. The sentences imposed on the appellants have been ordered to run concurrently.
2.The brief case of the prosecution in a nut shell is as follows:
i)The deceased Elango is the husband of PW-2 and brotherin-law of PW-3 and father of PW-10 and all of them are the resident of Puthukulam. On 12.02.2009, PW-2 and her husband deceased Elango had attended a funeral of one Anthoniammal at Konkanthanparai. The decesed Elango went to burial ground, whereas PW-2 came to her mother's house in order to take bath.
ii) When the deceased went to the burial ground at about 4.30 p.m., A-1 cut the deceased Elango on the neck, face and chest. PW-4 and PW-6 also seen the occurrence. PW-10 brought the injured Elango to the hospital.
iii) At about 5 p.m., the Accused/A-1 came with aruval (MO4) and A-2 to A-4 came with wooden sticks and abused PW-2 in filthy language and enquired her about her son. A-1 told PW-2 that her husband was killed by him in the burial ground itself and further, A-1 called her as prostitute and A-2/Arivazhagan told A-1 not to leave the prostitute and kill PW-2. Immediately PW-2 started running for safety. At that time A-2 to A-4 surrounded her and prevented her from escaping. By that time A-1 cut her on the left neck and thereafter, A-1 also cut PW-3, who was standing in front of her mother's house.
iv) In the mean time while PW-10, the son of PW-2 and the deceased Elango, and others brought the injured Elango from the burial ground and immediately all of them went to the hospital through a load auto. Elango the deceased was succumbed to injuries at about 8 p.m.
v)PW-1 also found PW-2 lying in a pool of blood and immediately took her to the hospital and his siganture was obtained in the hospital in Ex.P1/complaint. PW-3 was also attacked by A-1 at the relevant time with MO-4.
vi)PW-2 was examined by the Investigation Officer and her blood stained dresses MOs 1 to 3 were seized. A-2 to A-4 surrounded PW-3 and prevented her from escaping from the attack of A-1. She also examined, and her blood stained dresses MOs 5 to 7 were seized.
vii)PW-26 received the First Information Report from PW-1 https://hcservices.ecourts.gov.in/hcservices/ and registered the case in Crime No.56 of 2016 for the offence punishable under Sections 294(b), 109, 452, 307, 302 r/w 34 IPC under Ex.P-28 and forwarded the First Information Report to the
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Inspector of Police for further investigation. In the meanwhile, he has also obtained death intimation from the hospital under Exs.P-26 and Ex.P-27.
viii) PW-29, the Investigation Officer immediately rushed to the place of occurrence at 2 a.m. on 13.02.2009 and received the copy of the First Information Report from the constable and made necessary arrangements to photograph the place of occurrence and prepared observation mahazar Ex.P-2 at 7 a.m. and rough sketch Ex.P-33 and seized blood stained cement floor and ordinary cement floor under Athatchy Ex.P-3. Similarly, he took the blood stained earth and ordinary earth in the 2nd place of occurence under Ex.P-4 mahazar and thereafter seized blood stained earth and ordinary earth from the 3rd place of occurrence under Ex.P5. On the same day, he went to the hospital and prepared inquest over the dead body of the decased. The inquest report of the deceased is Ex.P-34 and he also seized the shirt and pant from the body of the deceased under MO 18 and MO 19 respectively. He also examined the witnesses and recorded their statements and arrested the accused Arivazhagalan/A-2 and Murugan/A-3 on 15.02.2009 and recorded the confession of A-1, who voluntarily surrendered, in the presence of witnesses. Pursuant to the admissible portion of the confession of A-1 under Ex.P-35, he has seized MO.14 wooden stick under Ex.P12 mahazar. Pursuant to the admissible portion of the confession of Murugan/A-3 under Ex.P-36 he also seized MO15 under Ex.P11. Thereafter, he took police custody of A-1 from the Court and examined him and recovered MO-4 aruval in pursuance of his confession under Ex.P-20. He also forwareded all the material objects and documents to the Court. Serologist Report is marked under Ex.P-39.
ix)PW-28 Medical Officer attached to the Government Medical College Hospital, Tirunelveli, attended Dhanabakiyam/PW-3 and found that 10 x 2 x 1 cm cut injury on the right palm. Ex.P30 is the wound certificate of PW-3. She further certified that Injury number one is grevious. Similarly on the same day she also attended P.W.-2, the wife of the deceased and found 3 x 2 x2 cm cut injury on the right side of back of neck and 15 x 1 x 1 cm laceration on the left thigh. Ex.P-32 is the accident report on that aspect. PW28 also attended the deceased and found the following injuries; 1) 15 x 4 x 1 cm cut injury on the chin 2) cut injury on the right side neck 3) 7 x 4 cm cut injury on the right hand 4) 5 x 3 cm cut injury of the left hand 5) cut injury on the chin, 6)cut injury on the right back, 7) 5 x 2 x 7 cm cut injury on the right back side of right shoulder. Ex.P-31 is the Wound Certificate in this regard.
x) PW18, Medical Officer, attached to Tirunelveli Medical College and Hosptial, conducted autopsy over the body of the deceased Elango and found the following injuries:
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3.An oblique gapping heavy cutting injury of size 10 x 1 x 5 cm over right side of upper part of neck. It cuts the underlying arteries, veins and nderves.
4.A vertical gapping stab injury of size 4 x 1 x 5 cm over left side of neck, it pierces the underlying muscles, arteries, veins and nerves. Its margins are sharp and edges clean cut.
5.An oblique curved gapping heavy cutting injury of size 17 x 4 x 2 cm over top of right shoulder. It cuts the underlying muscles.
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and opined that the deceased died due to multiple injuries and also due to blood loss, shock and haemorrhage. Ex.P-18 is the postmortem certificate in this regard.
xi) PW-29 in continutation of the investigation remanded the accused, seized the Material objects and fianlly laid the final report against the accused under Sections 294(b), 109, 452, 307, 302 r/w 34 IPC.
xii) PW-30 Deputy Superintendent of Police took up further investigation and recorded statements of the witnesses and handed over the case diary to PW-31 who finally laid the charge sheet against the accused.
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sister of PW-2 also in her evidence has stated about the specific overt act of causing injury on her with MO-4 by A-1 and other accused preventing her from escaping came along with A-1 with a common intention.
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in their evidence about the overt act of A-1. But in these appeals, this Court is inclind to go into the charges as against these appellants/A-2 to A-4 alone. When the evidence of PW-2 and PW-3 carefully scanned, this Court has no reason to disbelieve their evidence. Merely because they are injured or related to the deceased, their evidence cannot be discarded. It is extremely difficult, to believe that injured witnesses, who not only injured, but also lost their loved ones in the incident, would change the name of the real culprits and name some other persons due to some animosity. Further, motive for the attack also clearly spoken by PW-16 and PW-17. From the above evidence and materials prosecution has proved the charges against the appellants.
Sd/Assistant Registrar(CSII) /True Copy/
Sub-Assistant Registrar
To
RL/9C/8P/KP/SAR1/17/7/2017
Common Judgement made in CRL.A.(MD).Nos.466 and 469 of 2016
Dated: 07.07.2017
3 issues framed by the court
Whether the prosecution has proved the guilt of the appellants beyond all reasonable doubt.
Whether the evidence of injured witnesses PW-2 and PW-3 could be relied upon given the hostile testimony of the informant PW-1.
Whether the injury certificates mentioning 'laceration' rather than specific incised wounds were reliable to sustain conviction.
4 provisions across 2 enactments
P.Arivazhagan
A.Murugan
S.Kalaiselvan
The State
M.M.Sundresh
N.Sathish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
