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CASE NO.: Appeal (crl.)  1150-1151 of 2003

PETITIONER: Ravi

RESPONDENT: State Rep. by Inspector of Police

DATE OF JUDGMENT: 12/08/2004

BENCH: K.G. Balakrishnan  & Dr. AR. Lakshmanan.

JUDGMENT: J U D G M E N T

Dr. AR. Lakshmanan, J.

       The above appeals were filed against the judgment dated 14/02/2003  passed by the High Court of Judicature at Madras in Criminal Appeal Nos.315  and 539 of 1999 filed by A-1 Ravi and A-2 Pakkaraji.  The appellant herein was  the appellant in Criminal Appeal No. 315 before the High Court and was A-1  before the Court of Additional Sessions Judge, Pondicherry.  The learned  Sessions Judge acquitted A-2 of the offence under Section 302 I.P.C.  The  State also has not filed any appeal against the said acquittal of A-2 of the  offence of murder. The following charges were made against the accused:  

The Inspector of Police, Villianur Circle, Pondicherry has laid a charge  sheet against the accused alleging that on 6.3.1996 at about 1230 hrs. the  accused A-1 (Ravi),   A-2 (Raja @ Pukkaraji) and four others alleging that they  formed  themselves into an unlawful assembly, armed with deadly weapons  with a common object of such assembly, viz., to cause the death of one  Shanmugam due to previous enmity and in furtherance of common object of  such assembly, trespassed into the house of Adhikesavan, the brother of the  deceased Shanmugam and caused bleeding injuries to Shanmugam by  assaulting him with deadly weapons, all the accused chased him and forcibly  took him in an auto rickshaw to maidan near Pavanar Nagar, Reddiarpalayam,  Pondicherry beat him with deadly weapons left him with bleeding injuries and  the deceased Shanmugam subsequently died in the General Hospital,  Pondicherry and thus the accused had committed the offence of murder of  Shanmugam and thus committed offences punishable under Sections 148,  149, 448/149, 364/149 & 302/149.

On behalf of the prosecution, PW-1 to PW-11 were examined and Exs.  P1 to 22 and MOs.1 to 3 were marked. The case of the prosecution, in brief, is as follows:-

The brother of the deceased Shanmugam, along with other brothers  Krishnamurthy, deceased Shanmugam Siva and sister Gangabhavani were  staying in Pudhu saram and Krishnamurthy after marriage went to his father-in- law’s house.  About 8 years prior to the incident, the deceased Shanmugam  developed intimacy with one Sarasu and was living separately with her.  About  six months prior to the incident he came and started living five or six houses  away from his house.  About two or three days prior to the death of  Shanmugam i.e. on 4.3.1996 Shanmugam’s wife Sarasu committed suicide by  self immolation by pouring kerosene and setting fire to herself and died.   Shanmugam came and told P.W.1 that the brothers of Sarasu thought that he  was responsible for suicide and they were threatening him and he also told that  while he tried to save Sarasu, he sustained burn injuries on his hand and  wanted to take treatment and so he wanted to stay in their house and his father  also consented for the same and started staying with them and on 6.3.1996  A1-Ravi s/o Munuswamy came along with five persons armed with knife and

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sticks and entered the house and asked whether Shanmugam was there and  they got into the room where Shanmugam was lying and beat him there and  Shanmugam ran out and the crowd chased him and she asked P.W.1 to find  out what had happened to Shanmugam.  P.W.1 along with his brother  Krishnamoorthy went in search of him and he saw Shanmugam with bleeding  injuries lying down on a maidan behind the house of A1 Ravi slightly breathing  and without speech.  They took Shanmugam in an autorickshaw to General  Hospital, Pondicherry.  He returned home at 4.30 p.m. and informed his mother  about the same.  He then lodged a complaint before police.  Ex.P.1 is the  complaint given by him.  Shanmugam died on 7.3.96 due to the injuries  sustained by him on 6.3.96.

The Sessions Judge, Pondicherry, on consideration of the evidence on  record, came to the conclusion that the evidences of PWs 2,3 and 6 showed  that A-1 and A-2 were accompanied by five other persons and that A-1 and A-2  assaulted the deceased Shanmugham and that A-3 to A-7 were not identified  by any witnesses.  The Sessions Judge further held that the first accused  committed the offence under Sections 148, 364, 448 and 302 and for the main  offence, he was sentenced to undergo imprisonment for life.  For other  offences, sentence of imprisonment ranging from 1 to 7 years were imposed.   The second accused was found guilty of offence punishable under Sections  148, 448 and 324.   Aggrieved by the same, appeals were filed before the High Court by A-1  and A-2.  The High Court, on consideration of the evidence on record came to  the conclusion that the conviction of the accused for the offences is supported  by legal materials and there is no illegality in the judgment under challenge.   The High Court was also of the opinion that the delay in lodging the complaint  has been reasonably and satisfactorily explained and that there was no  suspicious circumstances at all in the oral evidence of PW-1.  The High Court  has also held that the evidence of PW-2, who is an eye witness to the  occurrence is convincing and that the infirmities which are referred to in Ex.P-1  or Ex.P-18 would not affect the oral evidence of PW-2 regarding the  occurrence.  The High Court felt that the omissions pointed out in Ex.P-1 and in  Ex.P-18 were too trivial in the fact, and the evidence of PW-2 established  beyond doubt the involvement of A-1 and A-2 in attacking the deceased.  

Dissatisfied with the above judgment, the appellant, A-1, preferred these  appeals by way of special leave petitions before this Court. We heard Ms. Prashanthi Prasad, learned counsel appearing for the  appellant and Mr. V.G. Pragasam, learned counsel appearing for the State.   We have been taken through the evidence on record and the judgment  rendered by the Sessions Court and also of the High Court.   

Learned counsel appearing for the appellant raised the following  submissions: 1)      the reasons advanced by the prosecution witnesses were not  sufficient to explain the enormous delay in filing the FIR and  that the High Court has erred in coming to the conclusion that  the delay has been explained properly. 2)      The complaint lodged by the complainant PW-1 at the  Reddiarpalayam is well outside the jurisdiction of the alleged  place of occurrence and that the High Court has failed to  appreciate that there seems to be no reason or explanation as  to why PW-1 has not given the complaint at the D Nagar  Police Station which is the nearest  one and the one to which  the jurisdiction pertains to. 3)      The prosecution has failed to establish beyond reasonable  doubt  the guilt of the accused , appellant herein.   4)      The non-examination of the material witnesses more so of the  eye witnesses is fatal to the prosecution and hence the  impugned judgment of the High Court ought to be set aside.

Per contra, learned counsel appearing for the State submitted that the  High Court, on a careful consideration of the evidence on record and under the  circumstances, has rightly found A-1 guilty for the offence under Section 302

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IPC and is not wrong in relying on the evidence tendered by the witnesses who  were relatives. In the background facts of this case, the point for determination is  whether the prosecution has proved its charge against the appellant A-1 who  was convicted and sentenced to undergo the various sentences imposed on  him by various sections of the code. We have gone through the evidence on record and the judgments  rendered by the Sessions Court and also of the High Court. The contention of the learned counsel for the appellant, in our opinion,  has no force since the prosecution sought to prove its case based on the eye  witnesses to the incident PW2, PW3 and PW6 which clearly implicate the  accused and that A1 and A3 had grudged against the deceased consequent to  the death of their sister Sarasu.  A1 and A2 also gave confession statements  independently and on the basis of the statements of A1, the knife MO2 and the  shirt MO2 were recovered under the mahazar Ext P6 and on the basis of the  statement of A2 the wooden reaper MO1 was recovered under Ext P5.  MO 1  to 3 contained blood stains and the blood on the shirt was identified as human  blood. Learned counsel for the appellant contended that the evidences of PW1  and PW2 should not be relied upon since they are related and are interested  witnesses and there was no confession and the recovery alleged to have been  effected by the prosecution.  We are unable to appreciate this contention.   It is settled by catena of cases by this Court that the evidence of eye  witnesses cannot be rejected merely because they are related.  In such a  situation, the evidence of P.W.2 in the present case, there is no strong motive  or ill-will on the part of P.W.2 to exonerate the real person who caused the  injuries to her son and to implicate the accused.

Learned counsel for the appellant contended that there is inordinate  delay in lodging the complaint.  This contention, in our opinion, has no leg to  stand.   On the fateful day, all the six accused were appeared armed with knife  and stick and by entering the room where Shanmugam was sleeping.  A1  attacked him with a knife followed by another person with a dark complexion  hitting him with a stick.  Out of fear, Shanmugam started running out of the  house for safety chased by all the accused, which was watched by P.W.2 and  others at home.  P.W. 2 tried to reach them but she could not and she came to  know that her son was taken in an autorickshaw by the assailants.  At 1.30  p.m., on that day her other son, namely, P.W.1 came home, to whom she  informed as to what happened and requested him to find out as to what  happened to Shanmugam, since deceased.  He came home around 4.30 p.m.  and informed her that Shanmugam his brother that he is lying in an open  ground near Bhoomiyanpet and that he had admitted him in the hospital.  She  had identified the person having dark complexion, in the test identification  parade held, as A2 P.W.1 is admittedly not an eye witness to the occurrence  but had stated as to what his mother told him about the occurrence but had  stated as to what his mother told him about the occurrence on reaching the  house at 1.30 p.m.  On hearing about the same from his mother, he went in  search of his brother and he found his brother lying in an open ground  struggling for life.  Accordingly, after admitting him in the hospital, he came  home at 4.30 p.m. informed his mother/P.W.2 and then went to the police  station to lodge the complaint, Ex.P.1.  The above facts would clearly go to  show that there is no delay in lodging the complaint.     

P.W.8 Thiru P. Nallathambi Judicial First Class Magistrate has stated  that on 25.3.96 he received a requisition to conduct identification parade as per  Ex.P10.  Consequently, he conducted identification parade on 28.3.96 at 3.00  p.m. in the Central Jail premises.  Three chances were given to the witnesses  P.W.2 and Gangabhavani to identify A2 Raji @ Pukkaraj who correctly  identified him in all the three chances.  Ex.P11 is the record of the test  identification parade containing 3 sheets.

The contention of the learned counsel for the appellant that the  complaint has not been registered within the Police Station which has a  jurisdiction.  This contention also has no force.  This point of jurisdiction was

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not urged before the Sessions Court and also before the High Court.  This was  raised by the learned counsel for the appellant at the time of addressing the  arguments before us.  Hence, we decline to entertain this plea at this belated  stage.  We have carefully gone through the annexures, the evidence of P.W.2  who is an eye-witness.  Her evidence is cogent and convincing.  In her  evidence she stated that the deceased Shanmugam has been living with one  Sarasu for about 8 years prior to his death and six months prior to his death,  they came and were living in a house nearby their house.  About a week prior  to that he was staying in their own house.  About a week prior to the death of  Shanmugam, sarasu committed self immolation by pouring kerosene on herself  and died after four or five days.  A1-Ravi, the brother of sarasu and her mother,  and brothers thought that shanmugam was responsible for the death of sarasu  and beat him.  Deceased shanmugam told them that he fears danger to his life  and wanted to stay in their house for safety purpose.  They also consented for  that.  On 6.3.96 at 12.30 p.m. Shanmugam was lying in the room of her house  while PW-2, her husband Adimoolam and daughter Gangabhavani were having  food and at that time, A1-Ravi along with six persons armed with knife and  sticks entered into their house and went inside the room where Shanmugam  was lying and attacked him.  A1 Ravi assaulted Shanmugam with knife and a  person with black complexion beat Shanmugam with a stick.  Unable to bear  the beatings Shanmugam climbed down the staircase and started running and  the seven persons chased him.  When she came out she found that all the  seven persons forcibly took Shanmugam in an autorickshaw.  She told this fact  to P.W.1 at 1.30 p.m. when he came to her house.  P.W.1 and her other son  Krishnamurthy went in search of Shanmugam and at 4.30 p.m. P.W.1 came to  her and informed her that Shanmugam had sustained injuries and was lying  near Boomiyanpet and that they admitted him in Hospital.  Subsequently, her  son Shanmugam died.  She has stated that she identified the second accused  before Magistrate in the jail as the person with black complexion who beat her  son apart from A1.

P.W.7 \026 Dr. R. Balaraman who conducted the post mortem examination  on the dead body and on external examination found seven injuries and on  internal examination, there was sub-dural haemorrage over left cerebral  hemisphere.  Brain was odomatous.  Extensive contusion was seen over the  left side of neck at the level of hyoid bone.  Viscera was sent for chemical  analysis and it was free from poison.  He gave his final opinion on 30.12.1996  that the deceased shanmugam died of injuries on head and neck.  Ex.P7 is the  post mortem examination report and Ex.P8 is the chemical examiner’s report.   Ex.P9 is the final opinion.  All the injuries in Ex.P7 were ante-mortem in nature.   Injuries 1 and 2 with the corresponding internal injuries are fatal in nature,  sufficient to cause death in the ordinary course of nature.  He has opined that  injuries 1,3 to 6 are possible with No.1 while injury No.2 is possible with No.2  Injury No.7 can be a burn injury or may be due to some other reason.

P.W.10, Vijayasundaram, the Inspector of Police has stated that he  recovered the weapon under a cover of the mahazar Ex.P5 and then  proceeded to the house of A1 who identified and produced the Koduval Kathi  (Knife) M.O.2 and a full hand shirt M.O.3 which were recovered under cover of  mahazar Ex.P6.  M.O. 1 to 3 contained blood stains.  P.W.11, the Inspector of  Police who took further investigation from P.W.10 obtained the opinion from  P.W.7 Dr. Balaraman and examined him and also obtained a copy of the F.I.R.  of D. Nagar Police Station pertaining to the death of Sarasu, wife of deceased  Shanmugam who had succumbed to burn injuries, despite treatment given to  her in the Government Hospital, Pondicherry.  He further stated that he  completed the investigation and laid the charge-sheet against all the accused  under various sections.  

For the foregoing reasons, we are of the opinion that the prosecution  has established its case that A-1 has caused the death of the deceased and  the evidence of P.W.2, P.W.3 and P.W. 6 which are important which clearly  implicate the accused which caused the injury to the deceased.  It is an  admitted fact that the accused A-1 had been living with the deceased as his  wife \026 P.W.2 the mother of the deceased Shanmugam knows A-1 Ravi.  She

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has in categorical terms stated that on the date of the incident A-1 came along  with 6 persons and entered her house and attacked Shanmugam who was  lying inside a room.  She clearly identified A-1 as the person who was h aving  the knife and assaulted the deceased.  She does not know A2.  She has also  identified the accused at the identification parade.

For the reasons aforesaid, we hold that the prosecution has clearly  established the guilt of the accused-appellant beyond any reasonable doubt  and that the appeals filed by A-1, therefore, fail and are dismissed.