Jeeva Vs The Inspector of Police

Jeeva : Appellant/Accused 5 in Crl.A(MD) No.501 of 2022 2. G.Jayabal : Appellant/Accused 4 in Crl.A(MD) No.637 of 2022 3.Balan@ Balasubramanian @ Pavadai : Appellant/Accused 3 in Crl.A(MD) No.646 of 2022 4. Saravanan : Appellant/Accused 1 in Crl.A(MD) No.312 of 2023

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Vs.

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The Inspector of Police, Vangal Police Station, Karur District : Respondent/Complainant in both appeals 1

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Crl.A(MD)Nos.501,637,646 of 2022 and 312 of 2023

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Common Prayer:-These Criminal Appeal have been filed under Section 374(2) of Criminal Procedure Code, to call for the records and set aside the judgment made in S.C.No.07 of 2021 on the file of the learned Sessions Judge, Karur dated 19.04.2022 and allow the appeal.

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For Appellants : Mrs. M.Krishnaveni

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(In Crl.A(MD) No.501 of 2022) : Mr.R. Manickaraj for Dr.R.Alagumani (In Crl.A(MD) No.637 of 2022) :Mr.C.Ezhilarasu (In Crl.A(MD) Nos.646 of 2022) : Mr.B.Vinoth Kumar (In Crl.A(MD) No.312 of 2023)

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For Respondent : Mr.T.Senthil Kumar

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In all cases Additional Public Prosecutor

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C O M M O N J U D G M E N T

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P.VELMURUGAN, J.,

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These Criminal Appeal are directed against the judgment of conviction and sentence passed by the learned Sessions Judge, Karur in S.C.No.07 of 2021 dated 19.04.2022 .

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For the sake of convenience, the accused are referred to as per

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their rank before the trial Court. Since all the appeals arise out of one and the same judgment they are clubbed and heard together and disposed of by this common judgment.

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By the above said judgment, the trial Court acquitted A2, convicted the accused 1 and 3 to 5 for the offence under Section 302 of the IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs.5,000/- each, in default to undergo six months rigorous imprisonment.

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The case of the prosecution in brief:-

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4.1. The de facto complainant is the wife of the deceased, Baskaran,

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and resides at Kaliyammal kovil street, Nerur. The accused 1 and 2 are son and mother respectively. The accused 3 to 5 are friends of the first accused. There was enmity between the deceased Baskaran’s family and the family of the accused 1 and 2. Two months before the incident, there was a quarrel between the deceased and the father of the first accused in

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which, the deceased was said to have damaged the house of the first accused and attacked him. It was subsequently pacified. On 07.05.2020, when the second accused was in her house, the deceased Baskaran, picked up wordy quarrel with her. On hearing this, the accused 1 and 4 have questioned the same with the deceased Baskaran, about it. The deceased Baskaran was said to have assaulted both of them with his hand. Thus, the accused 1 to 5 were said to have formed a common intention to kill the said Baskaran. In continuation of that, on 07.05.2020, at about 8.00 p.m., the accused 1 and 3 took wooden logs, fourth accused took aruval and second accused accompanied them and the first accused told that the deceased was said to have assaulted his father and also defamed his name. Further, the deceased was said to have propagated ill-words against his family. So, “he should die” and “his death was in their hands”. They attacked him on the head and face with wooden log. The second accused took wooden log from the first accused and was told “do not spare him” and attacked his head. The third accused also attacked with wooden log on the head and mouth of the deceased. The fourth accused has attacked the deceased on his face and head through aruval he had taken. The fifth accused took aruval from fourth accused

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and he attacked on the left side head of the deceased’s head. The injuries were fatal and caused the death of Baskaran. Thereafter based on the complaint given by the defacto complainant, the respondent police registered a case against the accused persons in Crime No. 240 of 2022 for the offences under Sections 148 and 302 of IPC.

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4.2. After completion of the investigation, the respondent police laid the charge sheet before the learned Judicial Magistrate No.II, Karur and the same was taken on file in P.R.C. No.16 of 2020

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4.3. On the appearance of the accused, the provisions of Section 207 of Cr.P.C. were complied with, and the case was committed to the Court of Session, where it was taken on file in S.C.No.7 of 2021 and made over to the learned Sessions Judge, Karur for trial under Section 209A of Cr.P.C. The trial Court framed charges against the accused for the offence punishable under Sections 148 and 302 of IPC.

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4.4. In order to substantiate the case of the prosecution, the prosecution examined 16 witnesses as P.W.1 to P.W.16, and 21 exhibits

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were marked as Ex.P.1 to Ex.P.21, and 4 material objects were exhibited as M.O.1 to M.O.4.

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4.5. After examination of the prosecution witnesses, when the appellants were questioned under Section 313 of the Code of Criminal Procedure on the incriminating circumstances appearing against them, they denied the charges as false. No witness was examined on the side of the accused, nor was any document marked.

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The trial Court, after considering the evidence on record and hearing both sides, by judgment dated 19.04.2022, convicted the appellants and sentenced them as detailed in Paragraph No.3 supra. Challenging the above-said conviction and sentence, the appellants have filed the present appeals.

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The learned counsel appearing for the appellants would submit that the Court below, having acquitted all the accused of the charges under Section 148, however, convicted the appellants and others under Section 302 of IPC, which is highly erroneous and contrary to law. He

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would further submit that there is no prior enmity between the appellants and the deceased family. The Court below failed to appreciate the fact that for sustaining conviction under Section 302 IPC against the appellants, there is no separate charge under Section 34 IPC or under Section 149 IPC or under Section 120-B IPC. Further there are material contradictions in the evidence with regard to the presence of PW-1 and PW-2 at the occurrence spot. The ocular witnesses PW-3, PW-4 and PW-5 have not supported the case of the prosecution. In fact, PW-3 and PW-5 turned hostile and PW-4 during cross examination deposed that he came to know the occurrence belatedly.

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Ex.P8, the Accident register, discloses the factual aspect that only four known persons were alleged to have assaulted the deceased. However, the respondent police filed the final report against five named accused persons including the appellants herein. In Ex.P8, the AR Copy, only contusion and lacerated injuries were mentioned. As per the evidence of the Investigation Officer no recovery has been made from the appellants and the confession and recovery as narrated by the prosecution are highly doubtful. Further the genesis of complaint 7

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(Ex.P1) is highly doubtful, since as per averments of PW-1 complaint was given at about 10.30 p.m., in the respondent police station. However, as per evidence of PW-16 the complaint was received by PW-15 at the hospital itself. Hence, previous complaint was conveniently suppressed by prosecution. Further in this case A4 had sustained an injury, however, the same was not properly investigated by the Investigating Officer. The presence of P.W.2 at the time of alleged occurrence is highly improbable, since the occurrence happened during the pandemic situation and his residence is far away from the occurrence spot and during cross examination he himself admitted the fact that all the temples were closed.

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The number of injuries as mentioned by the prosecution has not tallied with the evidence of PW1 and PW-2. As per evidence of PW-2, the presence of PW-1 and PW-4, was not spoken by PW-2. Further in this case, no independent witnesses have been examined to prove the alleged occurrence. In fact, PW-1, 2 and 4 are closely related to the deceased, and PW-3 and PW-5, the independent witnesses turned hostile and PW-9 who is the first wife of the deceased also did not

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support the case of the prosecution. Further, the signature in the complaint is different from the signature in the deposition of P.W.1. There was a statement by P.W.16, the sub-inspector of police, that he received information from the hospital, but that was not recorded in the General Diary and it was not registered as an FIR. The above aspects were not taken into consideration and the lower court passed the judgement. Further, the Investigating Officer has stated that on information, he found all the accused persons at burial ground of Nerur village and arrested them. It is highly improbable that all the accused were available in one place and hiding themselves in a place which is not far away from the village.

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Further the recovery was not proved because there is no specific mention in the recovery Mahazar, and also witnesses could not state before the court where it was hidden by the accused. The court below failed to see the occurrence from other aspects that the deceased Baskaran had enmity with many other persons and he was a rowdy. So, there are chances that the above crime could have been committed by some others. In this case P.W.1 to P.W.5 were shown as eyewitnesses,

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but P.W.2 to P.W.5 have turned hostile in that regard. Further, witnesses P.W.2 and P.W.6 were found to be untrustworthy based on their statement. At the time of occurrence, whether P.W.1 was inside the house or outside it was not answered by the witness.

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Though the learned Sessions Judge admitted that there are some discrepancies in the evidence of P.W.1, the learned Judge passed the judgment considering only the evidence of P.W.1 and on the same ground alone the judgment is liable to be set aside. As per Ex.P8 the Accident Register, P.W.1 has stated that her husband was attacked by four persons but in the complaint she has stated that five accused including the appellants were present at occurrence place. There is a mismatch between the evidence and statement of P.W.1. Further, there is no evidence that the accused persons formed unlawful assembly and shared a common object for committing murder of deceased Baskaran.

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The trial court failed to consider the fact that even though PWs 1 to 4 were stated to be present at the time of occurrence, nobody took the deceased to hospital immediately after the occurrence. The trial

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court failed to see the fact that though the respondent-police station is situated within 5 kms from the place of occurrence there was a long delay in lodging the complaint by PW-1 and it was stated that PW-1 alone has visited the respondent's police station and lodged her complaint which was marked as Ex.P1, which is highly doubtful. The trial court failed to see that there was an unreasonable delay of 7 hrs in the First Information Report i.e., EX.P.15, reaching Judicial Magistrate and the same was not satisfactorily explained bythe prosecution at the time of trial. The trial court failed to consider the fact that the rough sketch i.e., Ex. P16, prepared by the respondent itself, falsifies the statement of PW-1, since herself made a statement before the court that the dead body of deceased was laid in front of her house, but the rough sketch does not support her statement. Therefore the judgment of conviction passed by the trial Court is liable to be set aside and the appeal is to be allowed.

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The learned Additional Public Prosecutor would submit that

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the appellants are A1, A3, A4 and A5. P.W.1 is the eyewitness to the occurrence and she is the wife of the deceased. The occurrence took

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place at the house of the deceased. Due to previous enmity the appellants herein along with other accused came to the house of P.W.1, where the deceased and P.W.1 were residing with their children. On 07.05.2020 at about 8.00 pm., when they were in the house, the appellants came with wooden logs and a billhook and attacked the deceased, due to which, he sustained fatal injuries and subsequently the injured was taken to hospital in an ambulance and admitted in the Government Hospital, Karur at about 8.30 pm. P.W.10, the doctor gave first aid and also recorded the injuries in the accident register. At the time of admission to the hospital, the injured was unconscious and there was also bleeding in the left side ear and also sustained injuries on his head and also other parts of the body and he died thereafter. Thereafter, postmortem was conducted and the body was handed over to the family. Based on the complaint the case was registered and during investigation the accused were arrested and they also gave confession statements in the presence of Village Administrative Officer/P.W.6. Based on the admissible portion of the confession statement, weapons were recovered and also sent to forensic lab for chemical examination. The biological and serological reports show that the recovered materials

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contained human blood. Further P.W.1 and P.W.2 are eyewitnesses in this case and the prosecution has proved its case by establishing the motive behind the murder. The occurrence was proved through witnesses. The medical evidence also corroborated the evidence and recovery also proved, therefore the prosecution has proved its case beyond reasonable doubt. The trial Court rightly appreciated the oral and documentary evidence and convicted the appellants A1, A3 to A5 and therefore, there is no merit in these appeals and the same are liable to be dismissed.

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We have considered the submissions of the learned Counsel for the appellants and the learned Additional Public Prosecutor for the State and have carefully gone through the evidence and materials on record.

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The specific case of the prosecution is that all the accused persons with a common intention to murder the deceased attacked him with deadly weapons and caused his death. Based on the materials available, the trial Court also framed charges as against A1 to A5/ the appellants herein and other accused for the offences under Sections 148 13

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and 302 of IPC. In order to substantiate the charges, during trial the prosecution has examined as many as 16 witnesses and 21 documents were marked, besides four material objects were exhibited.

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After trial, the trial Court found the accused 1 to 5 not guilty of the charge u/s 148 IPC. and the second accused not guilty of the charge u/s 302 of IPC and she was acquitted of the charges u/s 148 and 302 of IPC. The accused 1 and 3 to 5 are found guilty of the charge u/s 302 of IPC. and they are convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- each, in default of which to undergo six months rigorous imprisonment, however the State has not filed any appeal challenging the acquittal of A2. Now the appellants have filed the present appeals challenging the conviction and sentence imposed by the trial Court.

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On a perusal of the materials produced by the prosecution before the trial Court and also the judgment of the trial Court it is seen that P.W.1, who is none other than the wife of the deceased, has spoken about the motive behind the occurrence and also about witnessing the

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occurrence and also gave complaint to set the law in motion and also identified all the accused and weapons.

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A reading of the complaint given by P.W.1 and Ex.P.1 clearly shows the motive behind the occurrence and also the specific overt act as against all the appellants. Though the learned counsel for the appellants vehemently contended that from the very same complaint, from the very same witnesses and from the very same materials the trial Court acquitted A2, whereas from the very same witness and from the very same materials the trial Court convicted the appellants, the same cannot be said to be perverse.

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From a reading of the complaint given by P.W.1, who is the wife of the deceased, it is seen that she is an eyewitness to the occurrence and she has clearly stated about the motive between the appellants and the deceased and clearly stated that subsequently on 07.05.2020 at about 8.00 pm., when P.W.1 was in the house along with her husband/ deceased and their children, at that time her husband was lying on the pial, which is in front of the house. At that time A1 to A5

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came there with wooden logs and billhook and attacked the deceased with it, due to which the deceased sustained injuries. Immediately thereafter, she took her husband in an ambulance and admitted him in the Government Hospital, Karur. The police also came there and recorded her statement and registered the case.

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The wife of the deceased was examined as P.W.1. A reading of the complaint and the evidence of P.W.1 would show that there are contradictions between the complaint and the evidence regarding overt act against A2/Susheela. Therefore, the trial Court extended the benefit of doubt in favour of A2 and acquitted her. From the averments made in the complaint and the evidence of P.W.1 and also the specific overt act as against all the appellants and there are no contradictions, therefore the trial Court came to the conclusion that the prosecution has proved its case beyond reasonable doubt. There are no eyewitnesses against the second accused, therefore, the trial Court acquitted A2 alone, however, convicted all other appellants for the offence under Section 302 IPC since there are specific overt acts regarding handling of weapons and also the attack made by the appellants in which the deceased sustained

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injuries in the vital parts namely head. Further, P.W.2, who is also one of the eyewitness, is none other than the brother of the deceased and is also a neighbour to the occurrence place. After hearing the noise he came to the occurrence place and saw the occurrence, he also spoke about the specific overt acts as against the appellants and subsequently even as per the evidence of P.W.1 and P.W.2 the deceased was immediately taken to the Government Hospital, Karur by an ambulance.

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P.W.7, who is the driver of the ambulance, deposed that on 07.05.2020 he was called over the phone at about 8.00 p.m. and at about 8.10 p.m. he went to the occurrence place, he took the deceased in an

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ambulance to the hospital and admitted in the hospital at about 8.20 p.m. and therefore, the occurrence place was also proved by the prosecution. P.W.7 is an independent witness, being an ambulance driver has clearly stated that he received a phone call from the occurrence place and immediately went there and took the deceased and admitted in the hospital. The evidence of P.W.10, who admitted the deceased in the hospital, also corroborated the same. His evidence is that on 07.05.2020, when he was in the hospital in Karur at about 8.30

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p.m., a person aged about 34 was admitted in the hospital for treatment.

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At that time the patient was unconscious and he was informed that at about 8.00 p.m., known persons attacked him with wooden logs and billhook. He also further deposed that the patient subsequently died and thereafter he sent the body to the mortuary. The evidence of P.W.12 proves that the doctor who conducted the postmortem had noted down the following injuries:

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tyJ fz;zpw;F fPNo 7X1cm vYk;G Moj;jpy ; xU rha;thd

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tha;gpoe;j ntl;Lf;fhak; fhzg;gl;lJ. Kf vYk;G ntl;Lg;gl;bUe;jJ.

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%f;fpd; mbapy; 1.5X0.5cm vYk;G Moj;jpy ; xU rha;thd

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tha;gpoe;j ntl;Lf;fhak; fhzg;gl;lJ.

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%f;fpd; eLg;gf;fj;jpy; 1.5X0.5cm vYk;G Moj;jpy ; xU kl;lkhd

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tha;gpoe;j ntl;Lf;fhak; fhzg;gl;lJ. %f;fpd; vYk;Gfs; FWf;nfYk;Gfs; cile;jpUe;jd

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cr;re;jiyapy; 7x4cm vYk;G Moj;jpy; rha;thd tha;gpoe;j

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ntl;Lf;fhak; fhzg;gl;lJ.

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cr;re;jiyapy; 7x1.5cm vYk;G Moj;jpy ; rha;thd tha;gpoe;j

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ntl;Lf;fhak; Nkw;nrhd;d fhaj;jpd; FWf;fhf ,Ue;jJ.

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jiyapd; ,lJgf;fk; 7X1.5cm vYk;G Moj;jpy; rha;thd tha;gpoe;j

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ntl;Lf;fhak; fhzg;gl;lJ.

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tyJ fl;iltpuypd; gpd;gFjpapy; 3x0.25x0.25cm Neuhd tha;gpoe;j ntl;Lf;fhak; fhzg;gl;lJ.

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tyJ fl;il tpuYf;Fk; Ms;fhl;b tpuYf;Fk; ,ilapy; 2.5cmx0.25x0.25cm mstpy; Neuhd tha;gpoe;j ntl;Lf;fhak;

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fhzg;gl;lJ.

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rpuha;g;G fhaq;fs;:

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Kd;de;jiyapy; ,lJGwk; 9*3cm mstpy; rpuha;g;Gld; $ba fpope;j fhak; fhzg;gl;lJ.

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,lJ fd;dj;jpy; 3x2cm mstpy; Nky;cjl;by; 0.25x0.25 cm, mstpy; %d;W rpuha;g;G fhak;

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fOj;jpd; ,lJGwk; 0.5x0.25cm, mstpy; tyJ tyJ Njhs;gl;ilapy; 1.5cmX0.5cm mstpy; tyJ ifapy; 11cm mstpy;> tyJ kzp;f;l;bwF fPo; 5x3cm mstpy ; ,lJ Njhs;gl;ilapy; 1.5x0.25cm ,lJ Koq;fhypy; 3x2.5cm mstpyhd rpuha;g;G fhaq;fs; fhzg;gl;lJ.

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The doctor has opined that the deceased appeared to have died of haemorrhagic shock and due to head wounds 12-18 hrs prior to being kept in cold storage.

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The Accident Register entry made by P.W.10 shows the injuries

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sustained by the deceased at the time of admitting in the hospital. From the evidence of P.W.12 and Ex.P.13 antemortem injuries sustained by the

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deceased before the postmortem were established and the post mortem certificate also proved the same and all the injuries were fatal in nature.

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As per the final opinion the deceased appeared to have died of haemorrhagic shock due to head wounds.

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P.W.6, is a Village Administrative Officer of Nerur vadapagam

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Village and he has stated that on 08.05.2020 at about 6.15 pm., there was a call from the police and when he reached the spot, the accused were arrested. For the purpose of recording statements, P.W.6 along with his village assistant went to Nerur Sathasivam Temple where he found the accused kept in custody of the police. In the presence of his Village Assistant one Saravanan/A1 gave a confession statement and also one Jeypal/A4 gave a confession statement voluntarily. Based on the admissible portion of the confession, recoveries were effected. They led the witnesses and the investigation officer to the hide out place and produced the weapons and the confession statement leading to recovery was marked as Ex.P2 and Ex.P3 and recovered materials were marked as Ex.P4 and Ex.P5 under mahazhars. Therefore, from the evidence of P.W.1 and P.W.2, who are eyewitnesses to the occurrence, the prosecution has established motive and also from the evidence of P.W.1 and P.W.2 prosecution had clearly established the occurrence and also the specific overt act as against the appellants.

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From the evidence of P.W.7, the driver of ambulance, the deceased was taken from the place of occurrence to the Government

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Hospital and was admitted to the hospital. The evidence of P.W.10/the doctor, Government Hospital, Karur proved that at the time of admission, the husband of P.W.1 sustained injuries and was also admitted in the hospital and he was unconscious. He made entries in the Accident Register/Ex.P.9 which show that the deceased sustained injuries on the vital parts.

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From the evidence of P.W. 10 and 12 and Ex.P8 and Ex.P11 it is seen that the deceased sustained injuries on his vital parts. From the evidence of P.W.6/Village Administrative Officer it is seen that the accused were arrested and materials were recovered from the accused. Therefore, a conjoint reading of evidence of P.Ws.1,2,6,7,8,9,12 and also Ex.Ps.1,2,3,4,8,11,12 and 13 the prosecution has proved its case beyond reasonable doubt that the appellants by using deadly weapons have caused injuries on his vital parts namely, the head, and therefore he died due to the injuries.

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Therefore while re-appreciating the evidence this Court finds

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that the evidence of P.W.1, P.W.2 is consistent, reliable and also credible. Though P.W.1 and P.W.2 are the close relatives of the deceased, it does not mean that their evidence should be discarded.

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This Court while re-appreciating the evidence, found the evidence of related witnesses is also reliable and there is contradictory evidence produced by the defence to show that the evidence of P.W.1 and P.W.2 are not reliable. The evidence of P.W.1 and P.W.2 inspires the confidence of this Court and the same is corroborated by other evidence, such as ambulance driver/P.W.7, Village Administrative Officer/P.W.6, doctor in Karur Government Hospital/P.W.10 and the postmotem doctor/PW.12. Therefore, this Court finds that the prosecution has proved its case beyond reasonable doubt and there is no perversity in the appreciation of evidence by the trial Court. While appreciating the evidence, this Court does not find any reason to interfere with the judgment of the trial Court.

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Though the learned counsel appearing for the appellants pointed out certain contradictions and discrepancies, which are 22

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inevitable and those contradictions are only minor contractions and they do not go to the root of the case of prosecution. Further, this Court finds the motive behind the murder was established and it was also established that the appellants herein caused injuries, the place of occurrence was established and injuries sustained by the deceased were established through medical evidence and the recovery of materials was also established.

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Therefore this Court finds no reason to interfere with the judgment of the trial Court and comes to the conclusion that the appellants are the persons who have committed the offence. In view of the same, there is no merit in the appeal and the same are liable to be dismissed.

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