CRL A/126/2002 of MURUGAN Vs STATE BY INSPECTOR OF POLICE, on 28 December 2004

-JUDGMENT:

V.KANAGARAJ,J.,

This criminal appeal is directed against theconviction and sentence passed by the Court of VII AdditionalSessions Judge, Chennai dated 28.9.2001 in S.C.No.34 of 2000thereby convicting the appellant for the commission of offencespunishable under Section 302 I.P.C. and sentencing him toundergo rigourous imprisonment for life besides imposition of afine of Rs.1000/- in default to undergo a further RigourousImprisonment for three months.

2. On a perusal of the materials placed on record andupon hearing the learned counsel for the appellant and thelearned Additional Public Prosecutor for the State, it comes tobe known that the appellant is the accused and he has beencharged for the commission of the offence punishable underSection 302 I.P.C.

3. The case of the prosecution is that the appellantwas having illicit intimacy with one Shanti,Daughter-in-law ofP.W.3, who is the maternal uncle of the appellant; that this wasexposed by the deceased. P.W.3 told the accused that he shouldnot pay visits to his house and therefore the appellantdeveloped a grudge against the deceased; that while so on08.09.1998 at about 7.30 p.m. the accused came to the house ofthe deceased and called him out; that the deceased came down andwas talking with the accused; that after some time both of themwere found at the place of occurrence that P.W.1 and P.W.2growing suspicions went in search of the deceased and when theywent to the place of occurrence, they saw the accused and thedeceased still talking to each other; that according to theprosecution during the course of altercation the appellantsuddenly took the M.O.1 knife and cut the deceased and ran awayand that the deceased died on the spot and hence the charge.

4. Thereupon, the Court of VII Additional SessionsJudge, Chennai, having framed the charge against the accusedand since he pleaded not guilty of the offence charged,conducted the trial into the charges with due opportunity forthe prosecution and defence as well, to exhaust their remediesduring which on the part of the prosecution whose burden it isto prove the charges beyond all reasonable doubts, as warrantedunder law, 11 witnesses have been examined as P.Ws 1 to 11 fororal evidence and have also marked 20 documents as Exhibits P.1to P.20 for documentary evidence further marking 9 materialobjects as M.Os.1 to 9. On the part of the defence, one witnesshas been examined as D.W.1 for oral evidence with nodocumentary evidence adduced on their part.

5. In consideration of the above evidence placed onrecord and in appreciation of the same the Court of VIIAdditional Sessions Judge, Chennai, has found the appellantguilty of the offence under Section 302 I.P.C. and sentencedhim to undergo imprisonment for life and to pay a fine ofRs.1000/- in default to undergo Rigourous Imprisonment for afurther term of three months and it is only challenging the saidconviction and sentence, the appellant/convict has come forwardto prefer the above appeal.

6. Heard the learned counsel appearing on behalf ofthe appellant/accused, the learned Addition Public Prosecutorappearing for the State as well.

7. During arguments the learned counsel for theappellant would submit that as per the case of the prosecutionon 08.09.1998 at about 7.30 p.m. the appellant came to the houseof the deceased and called him out; that the deceased came down

and he was talking with the accused; that after some time bothof them were found at the place of occurrence; that P.W.1 andP.W.2 went in search of the deceased in the house; that whenthey went to the place of occurrence, they saw the accused andthe deceased still engaged in wordy altercation and accordingto the prosecution the appellant suddenly took the M.O.1 knifeand cut the deceased and ran away and that the deceased died onthe spot; that P.W.1 went to the police station and gaveExhibit P-1 complaint to P.W.11 Inspector of Police and thatthe Inspector of Police registered the case in Crime No.1526 of1998 and took up the investigation; that he went to the place ofoccurrence and prepared Ex.P.2 and Ex.P.3; that he also tookphotographs with the help of P.W.7; that during the course ofinvestigation, he collected samples of Blood stained earth andsample earth(M.O.6 & M.O.7) under the cover of Exhibit P-4Mahazar then he sent them for chemical analysis; that on thesame day, he conducted inquest in the presence of of thepanchayatars and prepared Exhibit P-17 inquest report; that hesent the body of the deceased to Postmortem with the Ex.P-8requisition; that during the inquest he examined threewitnesses namely Jayachandran, Revathy and Angammal; that on9.9.1998 he examined four witnesses namely Dhanakodi, Shanthi,Purushothaman,and Rajendran; that on the same day, he arrestedthe appellant nearby Vijay Nagar Bus Stand at about 1.30 p.m.;that the appellant gave a confession the admissible portion ofwhich is Exhibit P-18; that he recovered M.O.1 knife used in thecrime at about 17.30 hours; under Mahazar Exhibit P-19 and M.O.8shirt worn by the appellant under Exhibit P-20 at about 11.30a.m.; that then he recovered Exhibit M.O.9 blood stained lungiworn by the appellant under Form No.95. On 10.9.1998 he sent arerequisition for post mortem and recorded the statement of doctorP.W.8 and then he sent the accused to the Judicial custody; ThenP.W.11 on completion of the investigation laid the charge sheetagainst the appellant under Section 302 I.P.C.

8. The learned counsel for the appellant would furthersubmit that the incident looks very artificial and against thehuman conduct and the place of occurrence is three kilo metresaway from the house of P.Ws1 and 2 and hence they could not haveseen the occurrence at all; that the evidence of D.W.1 is morenatural and believable than the evidence of P.W.1 and P.W.2 whoare the eye witnesses; P.W.3 is the motive witness; P.W4 is thewatchman who speaks about the light availability; P.W.5 is thewitness for the Observation Mahazaar and he gives a differentplace of occurrence. P.W.7 is the Photographer; P.W.8 is theport mortem Doctor; P.W.9 Police Constable who took the body topost mortem; P.W.10 is the property clerk who received theproperty in the Court of Saidapet and P.W. 11 is the Inspectorof Police. The learned counsel for the appellant would furthersubmit that at any event the sentence passed by the learned VIIAdditional Sessions Judge is excessive. The learned counsel would also cite the following judgements in favour of the caseof the appellant, which are respectively as follows:

(i) Hazari Lal Vs. The State (Delhi Admn.)(1980 Crl.L.J.564);(1980 Crl.L.J.564);

(ii) Khima Vikamshi & others Vs. State of Gujarat (2003 (2) Crl.L.J.2025); (2003 (2) Crl.L.J.2025);

(iii) Ram Mohan Mazumdar Vs. Ram Krishna Dass & another (A.I.R.1980 Supreme Court 872)

9. In the first judgement cited above, it has beenheld:"Statements made by witnesses in thecourse of investigation cannot be used assubstantive evidence. Section 162 of theCode of Criminal Procedure imposes a bar onthe use of any statement made by any personto a Police Officer in the course ofinvestigation at any enquiry or trial inrespect of any offence under investigationat the time when such statement was made,except for the purpose of contradicting thewitness in the manner provided by Section145 of the Evidence Act. Where any part ofsuch statement is so used any part thereofmay also be used in the re-examination ofthe witness for the limited purpose ofexplaining any matter referred to in hiscross-examination. The only other exceptionto this embargo in the course of aninvestigation relates to the statementsfalling within the provisions of Section 32(1) of the Evidence Act or permitted to beproved under Section 27 of the Evidence Act.The definition of 'proved' in Section 3 ofthe Evidence Act does not enable Court totake into consideration matters, includingstatements, whose use is statutorilybarred."10. In the second judgement cited above, it is held bythe Honourable Apex Court:"P.W.4 has admitted that she is aPardanashin lady, her accompanying thedeceased alone at the time of incidentitself is a doubtful circumstance; moresoin the background of the fact that her husband and mother-in-law were available inthe house when she left the house forDwarka, and the prosecution has not come outwith any explanation as to why any one ofthem did not accompany her to Dwarka. Thenagain her statement that she saw the accusedpersons for the first time when they startedassaulting the deceased, is also highlyunnatural because from the topography of theplace of incident, it is clear that the areain question was a flat land with visibilityto a considerably long distance, hence, ifreally P.W.4 was present at the time of theincident, she would have noticed theaccused persons much earlier than when theystarted assaulting the victim."

11. In the third judgement cited above, it is held outby the Supreme Court:"that the prosecution though has beenable to establish some of the links of thechain of circumstances, it has failed toestablish some of the vital links beyond allreasonable doubts. Therefore, the High Courtwas justified in coming to the conclusionthat the chain of circumstances in this caseis not complete."

12. On such arguments, the learned counsel for theappellant would pray to allow the above criminal appeal, settingaside the convicting judgement of the trial court.

13. On the contrary, on the part of the learnedAdditional Public Prosecutor representing the State would argueto the effect that P.Ws 1 and 2 have deposed as eye-witnessesand their evidence is natural and consistent; that there is nodelay in lodging of Exhibit P-16 compliant; that the conduct ofthe witnesses, their demeanour etc., have been fully analysed bythe trial court so as to arrive at a valid conclusion from outof such analytical approach; that the direct evidence of P.Ws 1and 2 does not in any manner become tainted and since beingreliable, the trial court has given credence to the same in itsdecision arrived at; moreover the medical evidence and theevidence of the Investigating Officer support the case of theprosecution in a more reliable manner. At this juncture thelearned Additional Public Prosecutor would cite a judgement of he Honourable Apex Court reported in HAZARI LAL Vs. The State(Delhi Administration) (AIR 1980 Supreme Court 873), wherein itis held:

"There is no rule of prudence,which has crystallized into a rule of law,nor indeed any rule of prudence, whichrequires that the evidence of such officersshould be treated on the same footing asevidence of accomplices and there should beinsistence on corroboration. In the factsand circumstances of a particular case, aCourt may be disinclined to act upon theevidence of such an officer withoutcorroboration, but, equally in facts andcircumstances of another case the Court mayunhesitatingly accept the evidence of suchan Officer. It is all a matter ofappreciation of evidence and on suchmatters, there can be no hard and fast rule,nor can there be any prudential guidance."

14. Citing the above judgement the learned AdditionalPublic Prosecutor would exhort that the Honourable Apex Courthas held in the said judgement that if the evidence of theInvestigating Officer is reliable and encouraging, based on suchevidence alone the conviction could sustain and no corroborativeevidence need be expected by the Court. On such arguments, thelearned Additional Public Prosecutor would ultimately pray todismiss the above criminal appeal confirming the judgement ofthe trial court.

15. In consideration of the facts pleaded, havingregard to the materials placed on record and upon hearing thelearned counsel for the appellant and the learned AdditionalPublic Prosecutor representing the respondent State as well whatcould be assessed by this Court is that it is a case of murderthat took place on 8.9.1998 at about 7.30 p.m. The appellantherein with such intention and motive and to commit the murderof the deceased one Devendran took him from his residence tothe place of occurrence and stabbing him with knife on his neck,right shoulder, on the back of the head and on his wristindiscriminately caused the death of the said Devendraninstantaneously and hence the appellant was charged for thecommission of the offence punishable under Section 302 of IndianPenal Code.

16. The prosecution whose burden is to prove itscharge beyond all reasonable doubts as it is required under law,has examined 11 witnesses for oral evidence, marked 20 documentsfor documentary evidence further marking 9 material objects in

proof of the case of the prosecution and in appreciation ofthese evidence placed on record, the trial court has arrived atthe conclusion that the prosecution has brought home the guiltof the accused and therefore has further convicted andsentenced the sole accused in the case, who is the appellantherein with imprisonment for life and with imposition of a fineof Rs.1000/- in default to undergo a further rigourousimprisonment for 3 months. It is this conviction and sentenceof the appellant, is under challenge in the above appeal.

17. Out of the 11 witnesses examined as P.Ws 1 toP.W.11 in favour of the case of the prosecution, P.Ws 1 and 2have been examined as eye-witnesses; P.W.3 as the witness forthe proof of motive; P.W.4 for circumstantial evidence; P.Ws 5and 6 as mahazar witnesses for the preparation of Exhibits P-2to P-4 seizure mahazars, out of whom P.W.6 would be declared ahostile witness; P.W.7 is the photographer who took thephotographs at the place of occurrence; P.W.8 is the postmortem Doctor who conducted autopsy on the body of the deceasedand issued Exhibit P-6 post mortem certificate; P.W.9 is thecorpse constable through whom M.Os 2 and 3 would be recovered;P.W.10 is the court clerk through whom M.Os 1 and 2 have beenrecovered and sent for the chemical analysis along with ExhibitP-13 Form and Exhibit P-14 letter of the Magistrate and thiswitness would obtain from the Chemical Analysis Centre, ExhibitP-15 report; P.W.11 is the Inspector of Police and theInvestigating Officer who would speak aboout right from thereceipt of the F.I.R. and all about the investigation,collection of evidence, examination of witnesses recording ofthe statement, arrest of the accused and making sucharrangements sending the body for post mortem and M.Os. forchemical analysis report to be obtained and on completion ofthe investigation would file the charge sheet against theappellant for the offence punishable under Section 302 I.P.C.

18. In the whole of the process of the prosecutionevidence P.Ws 1 and 2 have been examined as eye-witnesses. It isrelevant to consider whether the evidence of these two eye-witnesses who are admittedly closely related to the deceasedwould require corroboration since the evidence of thesewitnesses is interested testimony particularly in view of thefact that on the part of the defence certain doubts were raisedregarding the feasibility for these witnesses to witness theoccurrence. Firstly, it would be argued that the distancebetween the place of residence of the deceased from where he wastaken by the appellant to the place of occurrence is 3 kilometers and it is not reliable or artificial to say that P.Ws 1and 2 followed the deceased and the appellant to such a longdistance so as to witness the occurrence, the distance of 3kilo meters fixed on the part of the defence is factually wrong in view of the fact that in the cross examination P.W.1 has notonly denied the distance for the question put by the learnedcounsel for the defence to the effect that the distance is 5kilo meters from the place of the residence of the deceased andthe place of occurrence but has also stated that the occurrencetook place in the next street to the place of residence of thedeceased and therefore factually it is not established whetherthe distance is 3 kilo meters or 5 kilo meters and thereforebased on such hypothetical question, no doubts could beentertained at regarding the feasibility for P.Ws 1 and 2 towitness the occurrence.

19. Secondly, that no attempt was made by P.Ws 1 and2 to rescue the deceased from the hands of the appellant sincethere was absolutely no participation for these two witnesses inthe whole of the occurrence. So far as this point is concerned,it is the definite evidence of P.Ws. 1 and 2 that growingsuspicious about the appellant taking the deceased along withhim and since they were not seen nearby the residence P.Ws 1 and2 started searching for them and while they reached the place ofoccurrence which is just in the next street in a vacant sitenear Alakrity Apartments they were engaged in a wordyaltercation when all of a sudden the appellant took the knifefrom behind his back and started assaulting the deceased causinginjuries on the neck, shoulder, hands, legs and head etc., andon seeing the P.Ws 1 and 2 the appellant run away from the sceneof occurrence and therefore natural evidence has been adduced onthe part of P.Ws 1 and 2 eye-witnesses and in fact P.W.1 wouldalso identify M.O.1 knife, M.O.2 shirt, and M.O.3 lunghi wornby the deceased at the time of occurrence and it could also besaid that from the evidence of these two witnesses there is nomajor contradictions and therefore there is no reason as to whysuch valuable evidence adduced on the part of P.W.2 should berejected and therefore there is much reason for the trialcourt relying on the evidence of these two witnesses tosustain the conviction against the appellant.

20. Furthermore, it is a case of single accusedwhether regarding the motive which is very strong that theappellant was having illicit intimacy with one Shanthi daughter-in-law of P.W.3 and this was questioned by the deceased withthe appellant as a result of which, the appellant had a grudgeagainst him and on such strong motive with intention to committhe murder of the deceased and with full knowledge and with allpreparations, the appellant had perpetrated the murder of thedeceased. In the process of adducing evidence P.W.3 would serveas the motive witness, P.W.5 would serve as the mahazar witnessfor the preparation of the observation mahazar and rough sketch on the spot and since P.W.6 who also speaks to the same factshimself turning hostile is not affecting the case of theprosecution in any manner.

21. Coming to the vital part of circumstantialevidence, the post mortem Doctor who issued Exhibit P-6 postmortem certificate on examination of the dead body of thedeceased conducting post mortem and this witness would accountfor the injuries found on the body of the deceased which wouldcorrelate with those description given by the eye witnesses asto on which parts of the body the appellant stabbed thedeceased. This medical witness would also offer his opinionaccounting for a total of 10 injuries and would offer hisopinion that the deceased would appear to have died of multipleinjuries caused by the weapon M.O.1 shown to him. This witnesswould further opine that the injuries noted by him on the bodyof the deceased could have been caused by a weapon of the sortof M.O.1.

22. The next vital circumstantial evidence is suppliedby the evidence of the Investigating Officer from which it comesto be seen that pursuant to the admissible portion of theconfession statement of the accused on his arrest as seen fromExhibit P-18 the recovery of the weapon of offence M.O.1 wouldbe recovered as seen from the Mahazar i.e., Exhibit P-19 andthis recovery pursuant to the confession of the appellantleading to the recovery of M.O.1 is no less important evidencein a case of such nature and therefore in appreciation of theseevidence and on an overall consideration the entire case of theprosecution as projected before the trial court, the trial Judgeis able to arrive at his unshakeable decision to convict theaccused for the commission of the offence punishable underSection 302 I.P.C. in causing the murder of the deceased at theplace, time and in the manner alleged in the charge and hencethis court is not able to see any infirmity or inconsistencyeither factually or legally nor any other ills affecting thecase of the prosecution and therefore it has to be spelt outthat this Court could see no reason to cause its interferenceinto the well considered and merited manner in which the casehas been dealt with and the conclusion has been arrived at bythe trial court so as to convict the appellant for the cause ofmurder of the deceased and sentence him to undergo lifeimprisonment and to pay a fine of Rs.1000/- in default toundergo a further rigourous imprisonment for a term of 3 monthsand hence the following judgement.

In result,

(i) For all the discussions held supra,the above criminal appeal fails and the samebecomes liable to be dismissed and isdismissed accordingly; and

(ii) the judgement of the Court ofVII Additional Sessions Judge, Chennai,dated 28.9.01 rendered in S.C.No.34 of 2000thereby convicting the appellant for thecommission of the offence punishable underSection 302 I.P.C. and sentencing him toundergo rigourous imprisonment for lifebesides imposing a fine of Rs.1000/- indefault to undergo a further rigourousimprisonment of 3 months is herebyconfirmed.

ks

28-12-2004

Sd/Asst.Registrar

/true copy/

-Copy to:

Sub Asst.Registrar

1. The VII Addl. Sessions Judge, Chennai Chennai

2. -do- Through The Prl. Sessions Judge,Chennai.

3. The Superintendent, Central Prison, Vellore. Central Prison, Vellore.

4. The Inspector of Police, J-7, Velacherry Police Station, Chennai. J-7, Velacherry Police Station, Chennai.

5. The District Collector, Chennai. Chennai.

6. The Director General of Police, Chennai. Chennai.

7. The Public Prosecutor, Chennai.Cp (co)dv CRL.A.No.126 OF 2002