LawyerServices Judgment - Kumar and another v/s State by Inspector of Police, Saidapet

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Court Case No Date of Judgment
High Court of Judicature at Madras Crl.App. No.758 of 1987 10-07-1997
Judge(s)
THE HONOURABLE JUSTICE ARUMUGHAM & THE HONOURABLE JUSTICE I. DAVID CHRISTIAN
Parties
Kumar and another v/s State by Inspector of Police, Saidapet
Advocate(s)
K.A.Panchapagesan, for Appellants. R.Shanmugasundaram, Public Prosecutor for State.
Equivalent Citation(s)
1998 (1) MLJ 97 Crl
Judgment Full Text

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Sekar Versus The District Magistrate and District Collector of North Arcot Ambedkar District, Vellore and another A.R. Rajasakaran Versus I.C.D. Triplicane Branch, 55 Big St., Madras and another A.R. Rajasakaran Versus I.C.D. Triplicane Branch, 55 Big St., Madras and another

judgement - N. Arumugham J.The accused before the learned Principal Sessions Judge Madras in S.C.No.114 of 1987 convicted for the offence under Sec.302. I.P.C. and sentenced to life imprisonment by judgment dated 7.12.1987 have preferred this appeal canvassing the said judgment for its correctness and validity.2. The deceased by name Jinna alias Krishnamoorthy is the second son of P. W. 1 and P. W.2 is his wife. P. W.3 and one Kannan were the other sons of P.W.1. The deceased Jinna and P.W.2 were living separately. P.W.2 used to throw sullage water of her house near a Corporation latrine which was situated in front of her house. The second accused is stated to have been tethering his cows near the said latrine. On 3.3.1987 when P.W.2 threw sullage water near the latrine a portion of the same was said to have splashed and fell on A who was standing near the latrine which resulted in A2 abusing P.W.2 in vulgar language. In the after noon P.W.2 reported the matter lo the deceased when he returned from his office. The deceased however pacified P.W.2 by saying that he would speak to A-2 later. In this back drop on 7.3.1987 at about 9 p.m. the deceased and P. W.2 went lo a near by Vinayagar temple and after the worship of the deity they were talking in front of the temple which is very near to their house. P.W.3 by name Moorthi joined them and all the three were talking among themselves. It was at that time by 9.15 p.m. the prosecution claims that both the accused came there and the deceased asked A2 as to why heabused his wife P.W.2. Though he replied a wordy altercation had ensued between them. The first accused thereafter took out the knife M.O.6 from his waist and stabbed the deceased on his left flank three times. The second accused took out the knife M.O.7 and stabbed the deceased on the back. The first accused again stabbed the deceased and the stab fell on A2?s head. As P.Ws.2 and 3 the deceased raise alarm both the accused ran away taking with them the blood stained knives. The deceased then went towards P.W.1?s house. P.W.1 also heard the alarm when the deceased shouted that he was stabbed by both the accused near the temple. An autorickshaw was brought and the deceased was taken in the autorickshaw by P.Ws.2 and 3 to the Government Royapettah Hospital where P.W.6 the Casuality Medical Officer examined the deceased at 10.20 p.m. and he was informed by the deceased that he was stabbed by two known persons. D.W.6 the Causality Medical Officer When examined the deceased then found the following injuries (1) An open stab wound 5 cms. x 4 cms on the lower portion of the left iliec region with intestines exposed.(2) An incised wound 10 cms x 1/4 cm on the anterior abdominal wall from the right iliac fossa to the left iliac fossa. As the patient was in a state of shock P.W.6 started the treatment immediately and Ex.P.8 is the copy of the Accident Register. P.W.7 The doctor attached to the Government Hospital also examined the deceased. He took him to the operation theatre and gave him surgical treatment. During surgery P.W.7 found an incised wound across the middle of the abdomen with prolapsed bowels and there was collection of blood in peritoneum. There were three perforating injuries on the ileum. The mesentery was punctured in four places near its attachment. There was also a perforation in jejunam and there was an esentric and retroperitoneum haematoma. Meanwhile A2 went to Saidapet Police Station and at about 10 p.m. preferred a complaint.3. P.W.12 Inspector of Police registered a case on that complaint and sent A2 to Government Hospital Saidapet for treatment with a memo. P.W.5 is the Medical Officer of the Government Hospital Saidapet He examined the second accused and found on him an incised would I in length on the frontal bone. Ex.P.6 is the Accident Register entry. He was of the opinion that the injury on the second accused was simple in nature. In the meanwhile P.W.1 went to the Police Station as soon as the deceased was taken to the hospital and she preferred the complaint Ex.P.1 at the Police Station. P.W.12 registered a case on the said complainant. Ex.P.18 is the first information report in printed form. He then inspected the scene of occurrence and prepared an observation mahazar Ex.P.19 and the rough sketch Ex.P.20. He recovered blood stained earth M.O.8 and the sample earth M.O.9 under the cover of mahazar Ex.P.21 attested by the witnesses. There were blood stains in front of P.W.1?s house. M.O.10 blood stained earth from that place and the sample earth M.O.11 were seized by the Inspector under the cover of mahazar Ex.P.22. The blood stained saree of P.W.1 was seized under the cover of mahazar Ex.23. Inspector of Police then went to the hospital and examined P.W.2 Blood stained blouse M.O.2 and saree M.O.3 of D.W.2 were recovered by the Inspector under the cover of mahazar Ex.P.24. P.W.3 was examined at the hospital. The blood stained lungi M.O.4 of P.W.3 and shorts of the deceased M.O.5 were recovered by the Inspector under the cover of mahazar Ex.P.25. In spite of treatment given to the deceased he died at about 4.15 a.m. on the next day P.W.7 certified his death and sent death intimation Ex.P.9.4. On receipt of the death intimation the Inspector altered the case into Sec.302 I.P.C. and prepared the express report Ex.P.26 and sent the same to the court. He proceeded to the hospital and held the inquest over the dead body and Ex.P.27 is the inquest report. P.Ws.1 to 3 were examined during the inquest. Then the Inspector sent the dead body through P.W.1 I with a requisition Ex.P.11 for conducting autopsy.5. P.W.8 is the Additional Professor of Forensic Medicine attached to Madras Medical College. On receipt of Ex.P.11 she conducted autopsy over the corpse and found the following injuries:1. A curved linear incised wound 2.5 cms in length and 0.5 cms in width with a tailing of 4.5 cms in length directed towards left on lower part of left side of back. The inner end is 5 cms away from the midline and the outer end is 3 cms above the iliac crest on the left side. Edges are clean cut.2. A horizontal incised wound on front of upper part of abdomen involving the epigastrium and left hypochordrium 14 x 0.25 cms.3. An oblique incised wound 7 x 0.2 cms on left side of front of chest the lower end is 1.5 cms above the left costal arch.4. A linear midline sutured wound 16 cms in length with 10 sutures (Surgical midline incision).5. A horizontal sutured wound 21 cms. In length with 18 sutures over left side of front of abdomen involving the left hypochondrium and epigastrium the inner end is 2 cms. below the injury No.2.6. Horizontal sutured wound 7 cms. in length with 3 sutures on right side of abdomen involving the umbilical and right hypochondrium. The inner end is 4 cms below the injury No.27. An oblique sutured wound 6 cms in length with 4 sutures over left hypochondrium. The inner end is 4 cms away from midline and the outer end is 3.5 cms. below the injury No.2.8. Surgical drainage wound with rubber drainage tube in suit over right and left lumbar region of abdomen each 3 cms in length.On dissection of injuries 2 to 8.(i) Bruising of soft tissues 16 x 9 cms of the mesentery.(ii) Sutured wounds each 2 cm in length over the anterior aspect of jejunum (iii) Sutured wound 8 cms in length across the small intestine (Surgical and to end anastomosis)(iv) Bruising of tissues over the descending colon 23 x 4 cms.(v) Sutured wound over the retroperitoneal portion of mesentery 3 cms. in length (vi) Haemoperitoneum 15 x 10 x 4 cms. over right lumber and iliac region internally (vii) Perionophric haematoma over right kidney 13x10x6 cms. and over left kidney 5x3x2 cms. on its lower pole.On noting down the conditions of the other limbs of the dead body this doctor was of the opinion that the deceased would appear to have died of stab injuries to the intestines and injury to the kidneys. Ex.P.12 is the post mortem certificate issued by her. She would further opine that injuries 2 3 5 to 7 could have been caused with a weapon like M.O.6 and the first injury could have been caused with a weapon line M.O.7. 6. P.W.12 arrested the first accused in the presence of P.W.4 and another on 9.3.1987 and the first accused gave a voluntary statement which was recorded and the admissible portion of which has been marked as Ex.P.2 and he took the Inspector and his party to the near by railway track and took out the knife M.O.6 from underneath the bush and the Inspector seized the same under the cover of mahazar Ex.P.3. In the latter part of that evening P.W.1 2 arrested the second accused in the presence of P.W.4 and another and examined him. As he gave a voluntary statement it was reduced into writing and the admissible portion of which has been marked as Ex.P.4. He took the Inspector and the witnesses to a nearby railway track and from underneath a bush produced M.O.7 knife and the Inspector recovered the same under the cover of mahazar Ex.P.5.7. The materia] objects were then sent to the Court for subjecting them for chemical examination and report of the Chemical Examiner and Serologist Ex.P. 15 and Ex.P.16 respectively were received and human blood of A group was found on M.Os.l to 5 and the blood stained earth and the same group of human blood was found in the knives M.Os.6 and 7 Thus after completion of investigation the final report has been laid against the accused in the court.8. When both the accused were examined under Sec.313(1)(b) of the Code of Criminal Procedure on the basis of the incriminating portion of the evidence and the materials made available against them the first accused denied his complicity and involvement and he also denied having produced M.O.6 to the Inspector of Police and the other facts spoken to by the prosecution witnesses. The second accused had also denied the entire version of the prosecution witnesses and stated further that while he was in the house the deceased came there an stabbed him on the head with a knife and that he proceeded to the Police Station and preferred the complaint and the police detaining him at the police Station have foisted this false case. Though a voter list was relied on to show that P.W.3 was not residing in that locality as claimed none of the accused examined any witnesses on their behalf.9. Having recorded the oral testimony of P.Ws.1 to 12 and the documentary evidence Ex.P. 1 to Ex.P.28 with the marking of material objects 1 to 11 on behalf of the prosecution with none on behalf of the accused the learned trial Judge after having elaborately discussed has concluded that the prosecution had established the guilt and complicity of the accused beyond all reasonable doubts and found both the accused guilty under Sec.302 I.P.C. and thereby convicted and sentenced them as referred to supra by rendering the impugned judgment. It is this judgment which is being canvassed for its correctness and validity in this appeal.10. We have heard the bar for the appellants assailing the impugned judgment on more than one ground and the contra from the Public Prosecutor justifying the impugned judgment.11. In the context of the above rival position the only question that arises for consideration is whether the prosecution had established the guilt and complicity of both the accused beyond all reasonable doubts and if so whether the impugned judgment of conviction and sentence is proper or not?12. Mr.K.A. Panchapagesan learned counsel appearing for the appellants/accused took us through the oral testimony recorded from P.Ws.2 3 and 4 and then from P.W.1 on the one hand the F.I.R. given in this case as well as the counter complaint given by the second accused under Ex.P.28 as well as the medical evidence coupled with the Investigating Officer?s claim in investigating the whole case. By so doing the learned counsel contended that the evidence of P. Ws.2 and 3 is unbelievable as it fails to inspire confidence with reference to the topography and the oral claim of D.W.1. The next contention projected by the learned counsel is that the doctor?s evidence particularly the post mortem doctor who did the autopsy over the corpse or the other medico who has seen the deceased in the trauma ward has not noted any injury on the back of the deceased and that therefore the medical evidence did not agree with the oral claim of the ocular witnesses in this case which resulted in creating a doubt the benefit of which doubt should be ascribed in favour of the accused. The third ground urged by the learned counsel was that the investigation done in this case was a shabby one inherented will preponderence of improbabilities and the recoveries of the weapons M.O.6 and M.O.7 as spoken to by the Investigation Officer are merely artificial and superficial but however it lacks any truth in them. Lastly the learned counsel dwelt with the fact that if assuming for a moment. The deceased was attacked by the accused who were either under the circumstances of the sudden provocation caused to them or with the right or private defence for the reasoning that the second accused was found with a head injury caused by a knife which was perpetrated by the deceased and that therefore in any event according to the Learned counsel the offence alleged if any made out may not come under Sec.302 I.P.C. but a lesser offence.13. Learned Public Prosecutor Mr.R.Shanmugasundaram took pains in taking us through the evidence of P.Ws.2 3 and 4 as well as the doctor who treated the deceased at the first instance and the autopsy doctor and then brought to out notice that the injury caused by the second accused/ appellant started from the side back of the deceased which was found to have been spoken to by the occurrence witnesses and the first doctor in trauma ward who gave treatment has not noted the same so precisely for the reason of the condition of the patient was very serious at that time however in spite of the best treatment given the patient collapsed due to the injuries caused to him in all. While pointing out the said aspect learned Public Prosecutor would contend further that the prosecution witnesses particularly P.Ws.2 and 3 on the one hand and P.W.1 on the other hand were unanimous in claiming that both the accused dealt the stage and has contributed to the collapse of the deceased and that there was no contradiction and inconsistency in their claim. Their claim has been fully and amply corroborated by the medical evidence and as there was no iota of laches or inherent gap in the investigation learned Public Prosecutor would submit that the learned trial judge was perfectly correct in finding both the accused guilty for the offence charged and tries.14. In the context of the above rival positions we have had the occasion to peruse the evidence of P. Ws.2 and 3 on the one hand and P.W. 1 on the other hand and our analysis demonstrates the contribution and complicity subscribed by both the accused. In claiming the overt act of both the accused P.Ws.2 and 3 were not only unanimous but their evidence was very cogent natural and convincing. In fact the cross-examination done on them were of no use and no iota of suggestion seems to have been put to eschew or suspect their consistent version. P.W.1 though happens to be the mother of the deceased and closely related to P.W.2 and P.W.3 has clearly spoken to the res gestae narration of the events which occurred immediately after the occurrence. She gave water to her son the deceased and after despatching the injured to the hospital she went to the police station and set the law in motion which consequently was followed by the Investigation Officer in investigating the case in quite succession without any laches whatsoever. On going through the evidence of P.Ws.1 2 and 3 it is made clear that the arimus for attacking the deceased was that on the previous occasion P.W.2 had thrown sullage water on the second accused. This had subsequently emanated into the actual violence perpetrated in the instant case for causing the death of the deceased Though the above incident has been claimed to have been reported to the deceased by P.W.2 on the same day it appears he had questioned the accused latterly after a long lapse. When questioned so the presence of both the accused has not at all been denied by and on behalf of the deceased and that apart their presence has been spoken to P.Ws.1 to 3 in all. Admittedly both the accused were living elsewhere but their presence during the occurrence is admitted. If we take the concept of the defence that the accused are entitled to exercise their right of private defence in retaliation to the injury caused on the second accused by knife them firstly we have to accept the prosecution theory that the accused must have been present during the time of crime and secondly the right of private defence provided by the Indian Criminalogy did not extend to the first accused on any event. We also notice that both the accused were present together during the time of occurrence and in front of the house of the deceased. It has not been explained as to why both the accused had opted to go to the place of the deceased. Since it has not been explained we have no doubt in our mind to take that both the accused/ appellants are the assailants who have gone to the place of the deceased with the clear intention of dealing with him at about 9.15 p.m. on the day of occurrence.15. It was the evidence of P.W.2 and P.W.3 consistently that prior to the actual occurrence proper there ensued a wordy altercation between the accused and the deceased which was followed by the actual stabbing of the deceased by the accused. P.W.2 also claims that another stab aimed by the first accused on the deceased fell on the head of the second accused and he sustained injury which injury according to the doctor who gave treatment to the second accused is simple in nature. Of course it was true that the second accused had been to the police station at about 10 p.m. and gave a statement which was registered in Crime No.252 of 1987 by the Inspector of Police but according to him his investigation revealed that it was false and that therefore it was referred as a mistake of fact. The counter complaint covered under Ex.P-28 also proved the fact that both the accused were present in the scene of crime which provide substantial corroboration to the evidence of P.Ws.1 to 3. Even taking into consideration the substance of Ex.P.28 it was not made clear as to how the sudden provocation comes into play and the right of private of defence has been exercised by the accused severally or jointly. But on the other hand it has been clearly proved and established by the prosecution through P.Ws.2 and 3 on the one hand and the medicies on the otherhand who had given the first aid treatment surgery and autopsy beyond all reasonable doubts that the accused were the assailants who had caused the death of the deceased.16. As per the Serologist?s report the blood group found in the recovered weapons M.O.6 and M.O.7 tallies with the group of blood found in the clothes of the accused deceased and the prosecution witnesses which goes to the support of the eye-accounting plus the medical evidence in establishing the guilt of the accused. If we look into the various injuries noted down by P.W.8 the doctor who did autopsy the stab injury found on the back of the deceased comes to light.17. Of course the counter complaint registered as Crime Number No.252 of 1987 for the offence under Sec. 324 I.P.C. had been claimed to have been by the Inspector of Police P.W.I2 but he would admit that he had not examined any other witnesses other than the witnesses referred to in the final report of this case and that he has not recorded the statements from any other witnesses. If a counter complaint has been given by one of the injured who took part in the same transaction and the Investigating Officer fails to examine any other witnesses than the witnesses examined on behalf of the prosecution then we may be constrained to say that the Investigating Officer is not correct as per S.0.588 (A) of the Police Standing Order and that it is a serious lapse for which the inadequate investigation claimed by the Investigating Officer is to be deprecated. But however this lapse in the instant case does not affect the prosecution case or tilt the balance in either way for the reasoning that P.W.1 the mother of the deceased has given the res gestate narration and P.W.2 and P.W.3 though they are the brother and wife of the deceased have specifically spelt out the overt acts of both the accused in detail which aspects of the prosecution case have been fully supported and corroborated by the medical evidence and the fulfledged investigation except the one pointed out as above and thus the case of the prosecution has been clearly established beyond all reasonable doubts.18. The improbability in recovering the weapourees and the clothes followed by the arrest of both the accused and the inconsistent stand between the evidence of P.W.2 and P.W.3 pointed out by the learned counsel appearing for the appellants in our considered view is a very minor one and does not shake the prosecution case in any manner as it stands fully established and proved.19. In the absence of any iota of evidence made available atleast in the suggestion form except the one claimed by P.W.2 and P.W.3 that a wordy quarrel between the accused and the deceased ensured for as pan of five minutes did not amount to any heated exchange causing or rousing the temper of the accused in taking the knife a lethal weapon and cause the injuries to the deceased. It is in this context we are unable to find any symptom for causing provocation to the accused to any extent in perpetrating the violence upon the deceased SO also for the concept of the ?right of private defence we find that the prosecution had explained how the injury upon the had of the second accused was caused. It was claimed by P.W.2 that when the first accused tried to stab the deceased again the stab fell upon the second accused and caused injury on his head. It is worthwhile to note at this stage that the injury found upon the forehead of the second accused was a very minor one and sample in nature. If this is the position in our consideration view no right of private defence was made available to the accused especially when the accused were not in a position to sustain the injury either at the hands of the deceased or the prosecution witnesses. It is for these reasonings we are totally unable to persuade ourselves to countenance the contentions on the score of the right of exercise of private defence as projected by Mr.Panchapagesan learned counsel appearing for the appellants.20. On a careful and meticulous consideration of the entire oral and documentary evidence and established circumstances we are able to identify that the learned trial Judge has after having an elaborate discussion of the evidence and materials placed before him in its proper perspective has come to the correct conclusion that the prosecution had succeeded in its mission of bringing home the guilt of the accused beyond the realm of doubt for the offence charged and tried against them and consequently convicted and sentenced them to undergo life imprisonment. In this regard we have to accept necessarily the contentions subscribed by the learned Public Prosecutor and accordingly we endorse our views in full with the findings and conclusions of the learned trial judge and hold that there are no merits in this appeal.21. In the result for all the foregoing reasonings the appeal fails and accordingly it stands dismissed. Consequently the conviction and sentence recorded by the learned Principal Sessions Judge Madras in S.C.No.114 of 1997 dated 7.12.1987 are confirmed and maintained. Bail bonds if any executed by and on behalf of the appellants/accused shall stand cancelled.