State Rep. by Inspector of Police, Tiruchy vs Rettaimandaiyan @ Murugan

Rettaimandaiyan @ Murugan ...Respondent

(With Crl.A. No. 742 of 2003)

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. These two appeals have been filed by the State of Tamil

Nadu questioning correctness of the judgment rendered by a

Division Bench of the Madras High Court directing acquittal of

seven accused persons who had filed four appeals questioning

the conviction as recorded by the learned IInd Additional

sessions Judge, Tiruchirapalli Division at Tiruchy in Sessions

Case No.68/92. These two appeals relate to A-2 and A-7.

Seven persons faced trial for alleged commission of several

offences punishable under Indian Penal Code, 1860 (in short

`IPC'). Following charges were framed by learned Sessions

Judge against the accused persons:

(i) 148 IPC A-1, A-3 and A-6

(ii) 147 IPC A-2, A-4, A-5 and A-7

(iii) 302 IPC A-1 and A-3

(iv) 302 r/w 149 IPC A-2, A-4 and A-7

(v) 324 IPC A-6

(vi) 324 r/w 149 IPC A-1, A-5 and A-7

(vii) 323 IPC A-7

(viii) 323 r/w 149 IPC A-1 to A-6

2

2. The prosecution version as unfolded during trial is as

follows:

PW-1 is the widow of Mathappan (hereinafter referred to

as the `deceased'). She resides at Mudakkupatti which is

situated within the limits of Tiruchirapalli Corporation. The

deceased was carrying on business as a fish vendor. PWs 2

and 3 are the daughters of PW-1 and the deceased. PW-2

resides three houses away from the house of P.W.1 along with

her husband. All the accused reside at Mudukkupatti. A2 is

the brother of Al. A5 is the wife of Al. A3, A4 and A6 are

brothers. A7 is the friend of Al to A6. The occurrence took

place on 23.6.1991. One week prior to the date of occurrence,

around 1.30 p.m., P.W.3 went to collect water from a public

water tank. At that time Al came in a cycle and teased her.

P.W.3 informed about this to the deceased and the deceased

in turn questioned Al. At 6.00 p.m. on 22.6.1991, Al was

coming in a cycle with a load of arrack. When he was passing

the house of P.W.2, he had a fall, during which time, the front

3 wheel of the cycle hit against the daughter of P.W.2. On seeing

this, P.W.2 scolded A1, which was followed by a wordy quarrel

between PW.2 and A1. On coming to know about this, the

deceased and P.W.1 went to that place. P.W.2 narrated to

them as to what happened. On hearing this, the deceased

reprimanded A1 for his improper conduct.

At 7.30 p.m. on 23.6.1991, the deceased, P.Ws 2 and 3

were all watching the television in their house. At that time A1

and A5 came there and standing opposite to the house of

P.W.1, challenged the deceased to come out. Accordingly, the

deceased came out of the house, followed by P.Ws 1, 2 and 3.

A2 to A4, A6 and A7 were also there at that time. A1 was

armed with suluki, while A3 and A6 were each armed with an

aruval. A4 looking at the deceased, asked him as to why he is

often inviting trouble and saying so, he caught hold of his

right hand. A2 caught hold of his left hand. A5 induced others

to stab him without wasting any further time. Immediately A1

stabbed on the stomach of the deceased with suluki,

followed by A3, with an aruval cut on the head of the

4 deceased. P.W.1, on seeing that her husband is being cut by

the accused, intervened. At that time, A6 attacked her with an

aruval, which was warded off by P.W.1 with her hand,

resulting in an injury on her left elbow. He also attacked P.W.1

on her head. P.W.3 also stepped in, by raising her voice and

A7 with a stick attacked on the lip and hand of

P.W.3. The deceased was lying unconscious. On seeing that,

all the accused ran away. The entire occurrence was

witnessed by P.Ws 1 to 3. Mahamuni, the other son of the

deceased and P.W.1, on hearing about the occurrence, came

to the scene of occurrence and rushed his mother and

father to the government headquarters hospital at

Tiruchirapalli. Madhappan was asked as to who assaulted him

and he told the Doctor that he had come to sustain the

injuries at the hands of 8 to 10 known persons with the use

of aruval, spear and stick at about 7.30 p.m, in his house on

23.6.1991. P.W.7, on examining him found two injuries, which

are noticed in Ex.P6. She also examined P.W.1, who told her

that she came to sustain the injuries at the hands of 10

known persons in her house at 7.30 p.m. on the same day. On

5 her, the doctor found various symptoms as found noticed in

Ex.P6.

PW-11 was the Sub-Inspector of Police in the

Cantonment Police station at Tiruchirapalli. At 8.40 p.m. on

23.6.1991, he on receipt of the information over telephone

from the hospital, went there and examined the deceased, who

was there as an in-patient. At that time, Madhappan gave a

statement. He reduced the same into writing and after reading

it over to him, his signature was obtained in it. The said

statement is Ex.P.9. He came back to the police station at

9.30 p.m. and registered Ex.P9 in Crime No.63 of 91 for

offences punishable under Sections 147,148, 341, 324 and

323 IPC. Ex-P10 is the printed First Information Report. He

went to the hospital again at 10.30 p.m. and recovered M.Os.

1 and 2 from Madhappan in the presence of PW.5 under a

mahazar. He examined P.W.1 in the hospital. He went to the

scene of occurrence and examined P.W.3 and another. He also

examined P.W.2. On that night, he stayed at the scene of

6 occurrence in the village itself. At 6.00 a.m. on the next day,

he prepared Ex.Pl1)/rough sketch. Madhappan breathed his

last immediately after the mid night of 25.6.1991. Ex.P7 is the

death intimation. On receipt of Ex.P7, P.W.11 altered the

section of offence into one under Section 302 IPC and sent the

altered printed first information report to the Court as well as

to the higher officials.

The trial Court placed reliance on the evidence of the eye

witnesses PWs. 1 and 2 and the dying declaration Ext.P-9. The

conviction and the sentence imposed were challenged by all

the seven accused persons before the High Court which as

noted above directed their acquittal. The High Court

held that the dying declaration Ext.P-9 was not believable. So

far as the evidence of the eye witnesses is concerned it was

noted that though the eye witnesses spoke about the incident,

their evidence has to be discarded because the dying

declaration had been discarded.

7

3. In support of the appeals, learned counsel for the

appellant submitted that the reasoning given by the High

Court to discard the eye witnesses's version has no rationale.

Merely because the dying declaration has been discarded, that

cannot per se render the evidence of the eye witnesses

suspect. No other reason has been indicated by the High

Court to discard their evidence.

4. There is no appearance on behalf of the respondents in

spite of service of notice.

5. We find that the only reason indicated by the High Court

to discard the evidence of the eye witnesses is that the dying

declaration had been discarded. Even if that be so, without

indicating any reason as to what deficiency was there in the

evidence of eye witnesses, the High Court should not have

discarded their evidence. Nowhere it has been recorded by the

High Court that the eye witnesses's evidence was in any way

deficient. That being so, the judgment of the High Court is not

sustainable. Since the High Court has not discussed the

8 evidence of PWs. 1 and 2 independently to test whether it has

credibility or not, it would be appropriate to remit the matter

to the High Court to consider the matter afresh and examine

whether for any reason the evidence of PWs 1 and 2 need to

be discarded.

6. The appeals are allowed to the aforesaid extent.

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

...................................J. (HARJIT SINGH BEDI)

New Delhi, September 18, 2008

9