Benjamin vs State Rep. By Insp. Of Police

Benjamin ..... Appellant

Versus

State Represented by Inspector of Police .... Respondent

JUDGMENT

S.B. SINHA, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated

18th January, 2006 passed by a Division Bench of the Madras High

Court in Criminal Appeal No.142 of 1997 whereby and whereunder

the appeal filed by the appellant against an order of conviction dated 2

30th January, 1997 passed by the Principal Sessions Judge, Dindigul

Anna District, was dismissed.

3. Appellant with Jesu Raj and Arokiyam were proceeded against

for commission of an offence under Section 302 of the Indian Penal

Code. The first and second accused were charged for commission of

an offence punishable under Section 302 of the Indian Penal Code

whereas the third accused was charged for commission of an offence

under Section 302 of the Indian Penal Code read with Section 34

thereof.

4. Enmity between the parties is admitted. There were instances

to show that the accused had been causing various kinds of mischief.

The incident in question occurred on 26th November, 1994. Two

years prior thereto, accused Nos. 1 and 3 assaulted the deceased and

PW-4, Viyakula Mary. Four months thereafter, the appellant

(accused No.1) is said to have caused damage to the pipeline of the

water of the house of the deceased. A few months before the incident

in question, allegedly the haystack of the deceased was put on fire. 3

Two weeks prior to the incident again, the deceased was

assaulted resulting in initiation of a criminal proceeding against the

accused.

5. On 26th November, 1994 at about 9.00 p.m. while the deceased

and the informant - Kolandaisamy (PW-1) were proceeding towards

their house from Nilakkottai Market on their bicycles, somebody had

flashed torch light on the deceased. Deceased questioned thereabout.

At that time PW-1 also flashed light from his torch towards the

opposite direction and saw the appellant. Appellant assaulted the

deceased with a wood log which was marked as M.O.1. He saw the

accused No.3 catching hold of the deceased. He was threatened with

dire consequences, if he intervened, by the accused No.2 with a knife.

The deceased fell down but still was repeatedly assaulted. PW-1 ran

from the spot. He was chased. He allegedly hid himself in a bush.

6. PW-1 met PW-2 Saveriar and informed him about the incident

that had taken place. They rushed to their village. They came back to

the scene of occurrence and found that the deceased had expired. 4

7. PW-1 went to Nilakottai police station. A First Information

Report was lodged at about 1.00 A.M. on 27th November, 1994. The

Investigating officer reached the place of occurrence at about 2.00

A.M. He recovered blood stained earth and a blue shawl. Inquest of

the dead body was conducted between 3.00 a.m. and 5.00 a.m. He

had also examined some witnesses being PWs. 1, 2, 5 and 6. The

body was sent for post-mortem examination. Autopsy was conduced

at about 11.15 a.m. on 27th November, 1994. The following anti

mortem injuries were found on the person of the deceased :-

"1. On the back side of the head a bruise of the size 3 cm x 2 cm was found.

2. on the back of the left side of the head a bruise of size 3 cm x 2 cm was found.

3. On the upper portion of the head a swelling of the size 3 cm x 3 cm was found.

4. On the front side of the head a swelling of size 3 cm x 3 cm was found.

5. On the right side of the eye brow a bruise of size 2 cm x 1 cm was found.

6. Below the right eye a bruise of size 2 cm x 2 cm was found. Right eye was closed. Outside the right was totally blackened.

5 7. a swelling of the size 6 cm x 4 cm was found on the right cheek."

8. The learned Sessions Judge relying on or on the basis of the

material brought on record accepted the deposition of PW-1,

Kolandaisamy. All the other accused were held guilty of the charges

leveled against them. On an appeal preferred by the accused before

the High Court, it while upholding the conviction and sentence of the

appellant herein, it recorded a judgment of acquittal so far as accused

Nos. 2 and 3 are concerned. It was opined that accused No.2 being

father in law of he appellant, might not have any motive to cause the

murder of the deceased. Besides, no incised injury has been found on

the deceased. As regards accused No.3, it was held that there was no

cogent material to connect him with the crime.

9. Mr. T. Raja, learned counsel appearing on behalf of the

appellant in support of the appeal, inter alia would submit :-

1) That the High Court committed a serious error in

drawing presumption on the basis of the appellant's

conduct, to hold that he had the requisite intention to kill 6

the deceased. Such a presumption, learned counsel

would contend, is not available in law.

2) The cycle and torch used by PW-1 having not been

seized, which were material for the purpose of

corroborating his statement, the impugned judgment is

liable to be set aside.

3) If the articles which PW-1 had bought, could be seized,

there was absolutely no reason as to why the cycle and

the torch used by PW-1 could not have also been seized.

10. Mr. V. Kanakaraj, learned senior counsel appearing on behalf

of the State, on the other hand, supported the impugned judgment.

11. PW-1 and PW-4 have proved enmity between the parties.

Veracity of statements of the said witnesses to that effect was not

tested in the cross-examination. The fact that an incident had

occurred a few days prior to the incident in question is also not in

dispute.

7

12. The First Information Report was received by the Investigating

officer, PW-10, at 1.00 a.m. on 27th November, 1994. He

immediately came to the site. The distance between the place of

occurrence and Nilakkottai Police Station is about 3 kms. The

Investigating Officer reached the place of occurrence at about 2.00

a.m. Thus, the investigation commenced immediately after the

lodging of the First Information Report. It is not a case where an

undue delay in lodging the First Information Report took place.

13. Homicidal death of Maria Michel stands undisputed. It is also

evident from the post-mortem examination report that the injuries on

the deceased could have been caused by a log of wood which was

marked as M.O.1. The deceased suffered atleast three fractures on his

head.

14. PW-1, although may be a son of the deceased, but it is difficult

to disbelieve his statement that he had witnessed the occurrence. 8

15. We have been taken through the entirety of his deposition and

do not find any reason to differ with the views of the learned Sessions

Judge as also the High Court. The cycle and the torch used by PW-1

had no connection with the commission of the offence. If they had

not been seized by the police, for one reason or the other, the same by

itself would not be a ground to disbelieve the statement of PW-1.

16. The following finding of the High Court had been commented

upon by Mr. Raja.

"From the conduct of the first accused, it can be presumed that the first accused had the intention to kill the deceased and therefore the prosecution has proved its case in so far as the first accused is concerned."

17. The High Court while mentioning about the conduct of the

appellant, meant overt acts attributed on the part of the appellant.

The High Court merely opined that in view of the number of injuries

inflicted upon the deceased, he had an intention to kill him. Intention

to kill a person must be determined having regard to the factual

scenario involved in each case. The doctor PW-3, K. Subramaniam, 9

has clearly stated that the injuries suffered by the deceased could have

been caused by the log of wood, which was marked as M.O.1.

Medical evidence, thus, corroborated the ocular evidence.

18. Keeping in view the number of injuries inflicted on the

deceased as also the nature thereof and furthermore in view of the

opinion expressed by the doctor, there cannot be any doubt

whatsoever that the appellant had the intention to kill the deceased.

19. For the reasons abovementioned we do not find any merit in

this appeal which is accordingly dismissed.

.................................J.

( S.B. SINHA )

.................................J.

( HARJIT SINGH BEDI )

New Delhi January 11, 2008