G.Vivekanandan vs Sriramulu & Ors

G. Vivekanandan ...Appellant

Versus

Sriramulu & Ors. ...Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division bench of the

Madras High Court directing acquittal of the accused persons who faced

trial for alleged commission of offences punishable under Section 302 read

with Section 34 of the Indian Penal Code, 1860 (in short the `IPC'). Learned

Additional Sessions Judge, Virudhunagar had held the respondent accused

persons guilty for causing the death of one Gurusamy Naicker (hereinafter referred to as the `deceased') on 25.5.1997 while he was sleeping in front of

a shop.

2. Prosecution version as unfolded during trial is as follows:

Subburaj (PW1), Vivekanandan (PW2) are brothers and sons of the

deceased. Gopalakrishnasamy (PW5) is the brother of the deceased.

Rajavelusamy (A3) and Vasudevan (A4) are brothers. There is a Hindu

Primary School in S. Thiruvenkatapuram which belonged to the Kammavar

community. Venkatasamy (PW 7) has been the administrator of the school

for the past twenty years, as the President of the school by name Rangasamy

has not been there in the village for several years. Apart from the President

and Administrator, the Committee consisted of seven members. One of the

members by name Thiruppathi passed away. Without the knowledge of the

people of that village, the accused group showing the 4th accused as

President, 2nd accused as Administrator and seven persons including first

accused as members registered as the members of the Association

Committee in the office of the District Registrar, Virudhunagar. Jayaveeran

(PW15) the District Registrar received the memorandum and bye-laws in

this regard and effected registration on 06.05.1997. Coming to know about

2 this, a meeting in the village was convened including P.Ws.7 and 8. The

meeting was held on 15.05.1997 and about 200 persons participated in that

meeting. It was resolved in that meeting to elect an able administrator and in

that meeting the deceased Gurusamy was selected as the Administrator. In

fact in the meeting, apart from P.Ws. 3 and 5, the accused also participated.

In the said meeting, the accused raised an objection. But however, the same

was overruled and it was resolved to register on 27.05.1997 the name of the

deceased Gurusamy Naicker as Administrator and this provoked the

accused.

On 28.03.1997 at about 11.00 p.m., 1st and 3rd accused and 7 others

attacked PW.13 in the hotel belonging to the deceased. The deceased and

one Veerasamy pacified the accused and others. PW 13 lodged a complaint

before the Police in that regard. After investigation, Police filed charge

sheet against A1 and others, in which the deceased Guruswamy Naicker was

cited as a witness. Thus, the accused had a grievance against the deceased.

On 23.05.1997 at about 10.00 p.m., all the four accused went to the

hotel of the deceased Guruswamy Naicker. But the deceased was not there.

The accused then told PW 1 and PW2 who were present in the shop to tell

3 the deceased not to take charge in the School administration, and that if he

does so, he will not be allowed to live. When the deceased Guruswamy

Naicker returned, both P.Ws.1 and 2 informed him about the threat by the

accused. The deceased replied to PWs.1 and 2 by saying that when

something good is done to village, there is bound to be some opposition and

one should not mind this and pacified his sons viz. PWs.1 and 2.

On 24.05,1997 at about 11 p.m. P Ws.3 and 4 were talking to the

deceased about School administration and thereafter the deceased went to

sleep near the well situated South-West of the hotel. Along with the

deceased, PWs 3 and 4 also left. As it was late by then, PWs.3 and 4

decided to stay there itself. The deceased then went and slept in front of the

Shop known as Surya Saloon and Nandini Tailors, belonging to his brother

PW5, PWs. 3 and 4 went to the terrace of the Surya Saloon and slept there.

At about 3.45 a.m. on 25.05.1997 PWs.1and 2 for the purpose of

opening the hotel, were making preparations by cleaning the hotel. At that

time, all the four accused came there and questioned them about the

whereabouts of the deceased. A1 was having MO-1 Aruval with him while

A-2 was having MO 2. Seeing this, PWs.l and 2 got scared and told the

4 accused that the deceased was out of station. Then third accused saying that

the deceased should be there only and that his story can be finished

proceeded towards west and marched ahead to the place towards south to

reach the place where the deceased was sleeping. PWs.1 and 2 fearing that

the accused would finish off the deceased, followed the accused by

shouting. When the accused reached the deceased, A-3 caught hold of the

legs of the deceased and A-4 uttered the words, "cut and kill him",

whereupon A-1 with MO I aruval in his hands cut on the left side of the

neck of the deceased. Thereafter, A 2 with MO-2 aruval also cut on the left

side of the neck of the deceased. PWs.3 and 4 who were sleeping on the

terrace of the Surya Saloon, hearing the noise made by P.Ws. 1 and 2 got up

and also witnessed the attack on the deceased. P.Ws. 3 and 4 on seeing the

attack on the deceased, shouted, "why are you cutting and killing him". The

accused then threatened PWs. 3 and 4 not to come near and in view of that

PWs 3 and 4 did not proceed further. Thereafter accused left with weapons.

At the time of occurrence, electric mercury lights were burning both on the

west and south of the Alagarraja Textile Mill. There was also a light

burning in the pial where the deceased was sleeping.

5 After the accused left, PWs. 1 to 4 went near the deceased and they

saw the deceased had no life, Thereafter, PW1 went to the village and

informed him that PW 5 and both of them went back to the scene of

occurrence. PWs.1 and 5 saw the deceased lying dead with injuries on his

beck. Thereafter, PWs. 1 and 5 proceeded in a two wheeler to

Keelarajakulareman Police Station and reached there at 4.45 pm and gave

complaint to Sub Inspector of Police (P.W16). The complaint was reduced

to writing by the Head Constable and the same was read over to PW1 and

after ascertaining the correctness, his signature was obtained. In the said

complaint Ex.P-1, PW5 also signed. Sub Inspector of Police (PW 16), on

the basis of the said complaint registered a case in Crime No.169 of 1997

and prepared printed FI.R. Ex.P19. PW.16 thereafter telephonically

informed the Inspector of Police P.W.17 about the incident. The printed FIR

along with the complaint was sent to the Court of Judicial Magistrate and

copies thereof were sent to his superiors.

Inspector of Police (PW 17) proceeded to the scene of occurrence and

reached there at 6.00 a.m in the morning. Copy of the FIR, was received by

him at the scene of occurrence, Ex.P.6 is the observation mahazar prepared

by him and the same was attested by Village Administrative Officer (PW6)

6 and Thalayari Guncisekaran. A sketch Ex.P.20 was also prepared by the

Inspector of Police. Inquest over the body of the deceased was held between

6.00 a.m. and 10.00 a.m. And Ex.P-21 is the inquest report. During inquest,

Inspector of Police examined PWs. 1 to 3 and Rajammal and others. After

inquest, MOs. 3, 4, 8, 9, 10 and 11 were seized under mahazar Ex. P7. The

body of the deceased was then sent to the Government Hospital with a

requisition to conduct post mortem.

Dr. Bharathilakslmi (P.W.l1) at Goverment Hospital, Rajapalayam,

on receipt of requisition Ex.P-13 commenced autopsy on the body of the

deceased at about 3.00 PM in the afternoon. Ex.P-14 is the post mortem

certificate issued by the Doctor. In the said certificate, the Doctor had noted

the following:

"Injuries: 1. Cut injury of about 9 cms extend from 2 cm away from

the angle of the mouth (left) to 3 cm below the ear lobule (left) horizontally

placed, depth 1 cm margins regular and tapering with fracture of the angle

of the mandible.

2. Cut injury of about 20 cms extend from middle of the neck back

side (left) to the middle of the chin and first injury merging with this wound

margin regular and tapering depth upto vartebral bone, wound horizontally

7 placed - skin, muscles and vessels hence all are cut with fracture of the C.2

vertebrae body. No blood cloths seen. There was no fracture in skull. There

was no injury in the Brain and its colour was pale.

There was fracture of C-2 Vertebrae in Spinal Column.

Hyoid:

Intact. Lung : PaLE NO RIB FRACTURE, Heard:

Pale, Chambers empty, Liver, Spleen: Pale.

Stomach: Pales Bladder: 100 ml. of urine".

The Doctor had opined that the deceased would appear to have died

of shock and haemorrhage and death would have occurred 10 to 18 hours

prior to post mortem.

On information, the Inspector of Police arrested all the four accused

on 26.05.1997 at about 2.00 p.m., at the place called Sevelmedu Otrangadu

in the presence of PW9 and PW 12. On arrest, accused 1 and 2

independently gave confessional statements. Ex.P22 is the admissible

portion of the confession statement given by A1 while Ex.P.23 is the

admissible portion of the confession statement given by A2 Pursuant to the

confession statement, A2 took the police party and the witnesses and

8 produced MO 2 aruval from a thorny bush at a place called Otrangadu and

the same was recovered under mahazar Ex.P 24. On the same day, at about

6.15 p.m., A-1 produced MO-1 aruval and the same was recovered. Both the

mahazars were attested by Village Administrative Officer (PW 9) and

Thalayari. The Inspector of Police proceeded with the investigation and

examined the witnesses on various dates. The statements of PWs. 1 to 4

were recorded by P.W.10 Judicial Magistrate, Srivivilliputhur and the same

are marked as Exs to P2 to P5. The material objects were then sent for

chemical analysis. Exs.P.28 and P29 are the chemical analyst's report while

Ex.P 30 is the Serologist's report. The Inspector of Police after completing

investigation, filed his report on 7.7.1997 under Section 302 read with

Section 34 and 109 IPC.

As the accused persons pleaded innocence, trial was held, where the

accused persons were held guilty. Questioning the conviction an appeal was

filed by the respondents which as noted above directed acquittal.

4. In support of the appeal, learned counsel for the appellant-informant

submitted that the High Court was not justified in directing acquittal. The

evidence of PWs.1 & 2 has been discarded without indicating any reason.

9 It was also pointed out that there is no delay in dispatching to Magistrate

(Ex.19).

5. Learned counsel for the respondent on the other hand supported the

judgment.

6. It is seen that the High Court has not discussed the evidence. No

reason has been indicated as to why the detailed analysis done by the Trial

Court deserved to be up set. The conclusions are factually incorrect. So far

as the date on which the special report reached the Magistrate is concerned

it is to be noted that the Judicial Magistrate has put his signature to have

received the document at about 7.45 a.m. on 25.5.1997. But in the seal of

the Court the date is differently shown. Nevertheless date is recorded by the

Magistrate to be 25.5.1997. The High Court also doubted the lodging of the

FIR at the time of the claim.

7. Opposing the appeal, learned counsel for the accused submitted that

since there was unexplained factor of delay, the High Court was justified in

directing acquittal. It is stated that the evidence of PWs. 1 & 2 do not

inspire confidence and, therefore, the High Court has rightly discarded the

evidence brought on record.

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8. We do not think it is necessary to analyse the various aspects

involved in detail. It is seen that the High Court has practically disposed of

the criminal appeal without analyzing the evidence and without indicating

any basis as to why the view expressed by the trial court cannot be

maintained. In the aforesaid circumstances we remit the matter to the High

Court for fresh disposal in accordance with law. We request the High Court

to dispose of the appeal as early as practicable.

9. The appeal is disposed of accordingly.

.....................................

....J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, February 12, 2009

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