Kanagaraj vs The Inspector of Police

V. Periya Karuppiah, J.—This appeal is directed against the Judgment of conviction and sentence passed by the learned Additional District

and Sessions Judge, Namakkal in S.C. No. 52 of 2005 dated 29.09.2005 against the accused to under one year Rigorous Imprisonment and pay

a fine of Rs. 1,000/- and in default to undergo 2 months simple imprisonment u/s 148 IPC; to undergo 5 years rigorous imprisonment and also to

pay a sum of Rs. 5,000/- and in default to undergo 6 months simple imprisonment u/s 449 IPC; to undergo one month simple imprisonment and to

pay a sum of Rs. 150 as fine and in default to undergo 2 weeks simple imprisonment u/s 341 IPC; and to undergo life imprisonment and also to

pay a sum of Rs. 10,000/- towards fine and in default to undergo 6 months simple imprisonment u/s 302 IPC.

The case of the prosecution is as follows:

(a) on 20.08.1998 at about 09.40 a.m. in Tiruchengode Town, Tiruchengode-Sankagiri main road in Prince Complex in Door No. 104/10, T.A.S.

Plaza in the Sivagami Finance situated at the first floor, the accused along with one Vijayaraj, deceased Chandrabalan, Saravanan @ Karathe

Saravanan, Ponraj, Vanchinathan, Maxnathan, Thirumurthy, Sivakumar, Paneerselvam with the intention to cause murder of Mohanasundaram

entered the said premises with deadly weapon Aruval and the accused attacked on the head of the Mohanasundaram when he was reading the

papers and also caused injuries with the said Aruval in his right hand and the other accused had with Aruval in their hands caused several injuries

on the body of Mohanasundaram and thereby he died on the spot.

(b) Immediately after the occurrence, P.W.1 went to the Tiruchengode Town Police Station and gave a report to P.W.11 Inspector of Police.

Ex.P-1 is the complaint.

(c) Thereafter, P.W.11 Inspector of Police took up investigation and went to the scene of occurrence. He prepared observation Mahazaar and

rough sketch. The material objects were also recovered.

(d) P.W.10 Inspector of Police conducted inquest and examined the witnesses. He prepared Ex.P-16 inquest report. Thereafter, the body was

sent for post mortem.

(e) P.W.10 Doctor conducted post-mortem on the dead body of the deceased and issued Ex.P-13 post-mortem certificate giving opinion that the

deceased died due to the haemorrhage shock due to the injury.

(f) P.W.11 Inspector of Police arrested the accused and on his confession, he recovered M.O.12. Thereafter the material objects were sent for

chemical analysis.

(g) After completion of the investigation, P.W.11 Inspector of Police filed the charge sheet against the accused along with other co-accused to the

effect that they are liable to be punished u/s 147, 148, 341, 427, 449, 302 r/w 149 IPC.

The learned Additional Sessions Judge, Namakkal had examined P.Ws.1 to 11 and had admitted Exs.P1 to P18 and M.Os.1 to 12 in a full-

fledged trial and had come to the conclusion of convicting and sentencing the accused as aforesaid.

When the accused was questioned u/s 313 Cr.PC, the case of the accused is one of total denial. On the side of defence, the evidence was

adduced.

The trial Court, after having analysed the materials available on record, concluded that the prosecution has established its case beyond

reasonable doubt and found the accused guilty of the offence referred to above and convicted and sentenced him thereunder. Challenging the said

conviction and sentence, the accused has filed this appeal.

Mr. A. Padmanabhan, learned Counsel appearing for the appellant/accused had submitted in his arguments that the lower Court had convicted

and sentenced the accused despite there was no evidence proving the prosecution case as all the eye witnesses had turned hostile without

supporting the prosecution case. He would further submit in his argument that the complainant who was examined as P.W.1 had not supported the

prosecution case. But the lower Court had come to a wrong conclusion that the prosecution has proved its case through recovery and the chemical

examination of blood. He would also submit in his argument that the witness who spoke about the recovery had not proved the confession leading

to recovery and the recovery of the weapon u/s 27 of the Indian Evidence Act and therefore the nexus of the accused that the weapon was not

proved by the prosecution beyond all reasonable doubt, but the lower Court had wrongly come to a conclusion that the recovery has been proved

by the examination of independent witness viz., P.W.5.

The learned Counsel would further submit in his argument that the trial of cases against the other accused were ended in acquittal since all these

witnesses were remained hostile in those cases also and in this case only the lower Court had taken an exception to come to a conclusion of

convicting the accused.

He would also submit in his argument that the overall evidence adduced by the prosecution did not prove the case of the prosecution beyond all

reasonable doubt and therefore the accused may be given benefit of doubt and the Judgment of lower Court may be set aside and the appeal be

allowed.

Mr. V.R. Balasubramanian, learned Additional Public Prosecutor would submit in his argument that the Judgment of the learned Additional

Sessions Judge, Namakkal is perfectly in accordance with the evidence adduced on the side of the prosecution and the witnesses who have turned

hostile had supported the case of the prosecution in their cross-examination made by the State and the defence did not thereafter cross examine

such witness effectively and therefore, the prosecution witnesses even though turned hostile have proved the case of the prosecution.

The learned Additional Public Prosecutor would also submit in his argument that the evidence of P.W.5 had proved the arrest of the accused

and also confession given by him leading to the recovery of the weapon and his evidence even after treating him as hostile witness would go to

prove the discovery of the weapon by the accused on the basis of his confession. He would further submit in his argument that the evidence of the

hostile witnesses could be taken for establishing the proof of prosecution case whenever they speak in favour of prosecution and the said principle

has been settled by the Honourable Supreme Court of India and therefore the evidence of the prosecution witnesses even though turned hostile,

have proved the prosecution case beyond reasonable doubt. He had also pointed out that such evidence by the prosecution witnesses had also

been corroborated by the recovery of the weapon on the confession of the accused and the Serology report connecting the blood stains in the

weapon with the blood stains in the clothes of the deceased is one and the same ''B'' group. Therefore, he had prayed for the dismissal of the

appeal confirming the conviction and sentence against the accused.

We have given anxious thoughts to the arguments advanced by both sides in support of their case.

The point to be proved on the side of the prosecution was that on 20.08.1998 at about 08.30 a.m. when the deceased Mohanasundaram was

at the Finance Shop opposite to the shop where he and P.W.1 were selling furnitures, the accused along with other co-accused had entered into

the premises of the accused with Aruval in his hand had attacked on the center head of the Mohanasundaram and thereafter he had caused cut

injuries on the right hand and the other accused had also with the Aruvals in their hands caused injuries on the body of the said Mohanasundaram,

with intention to cause death of said Mohanasundaram and due to profuse bleeding from the injuries the said Mohanasundaram was dead at the

place of occurrence itself. P.W.1 is the eyewitness and also the complainant. He had spoken to the fact that the accused were inimical towards the

said Mohanasundaram, his step brother since the said Mohanasundaram was prohibiting the accused from selling arrack and was insisting the

accused to not to sell arrack anywhere. He had also spoken to the fact that the accused and other co-accused were entering into the Finance

Company on 20.08.1998 and the accused had caused injury on the head of the said Mohanasundaram and on his right hand. The other accused

had also attacked on Mohanasundaram with the Aruval in their hands and therefore, P.W.1 was afraid and was fleeing from the said place and the

woman worker viz. Sudha, who was also present had also run out for her life. The said evidence of P.W.1 was spoken by him in his cross-

examination done by the State. However, in the cross-examination of the accused nothing was elicited nor denied. Similarly, the witness P.W.2,

who is also yet another witness namely the owner of the Finance Shop, where the occurrence had taken place would depose that on 20.08.1998

at about 09.30 a.m. the accused with other co-accused had cut on Mohanasundaram and he was in a pool of blood at his shop. Therefore, he had

come out from the shop. Even though he was treated as hostile witness, he had spoken everything in support of the prosecution case corroborating

P.W.1''s evidence. The accused did not effectively cross-examine his evidence. P.Ws.3 and 4 are the two wives of the deceased

Mohanasundaram. They have spoken to the fact that their husband Mohanasundaram was inimical towards the accused and others since

Mohanasundaram was used to convene many ""Katta Panchayats"" and also insisting the accused not to sell illicit arrack in the town.

Whether the evidence of P.Ws.1 and 2 could be relied upon as a genuine evidence to bring home the accused for conviction has to be seen

with other supporting evidence. P.W.5 is the Village Administrative Officer and he also was treated as hostile witness. However, his evidence in

Chief Examination, would go a long way to prove the Observation Mahazaar to which he was one of the witnesses and to prove the seizure of

material objects at the scene of occurrence and in respect of the arrest of the accused on 22.08.1998 at 04.00 p.m. in Narayanam Palayam Bus

stop in Tiruchengode-Sankagiri road. In his cross-examination by the State, we could see that he had spoken to the fact that accused had given

confession to the Investigating Officer and in pursuance of the confession, he had identified the weapon he had used for commission of offence

M.O.12 on the same day by 06.00 p.m. near Cheemai Kathazai on the southern side of Harijan Cremation Ground on the Thar road. The said

recovery was proved through the evidence spoken by P.W.5 in his Chief examination and in the cross-examination. The said Aruval with blood

stains along with other material objects including the bloodstains in the clothes of the deceased were sent for chemical examination and the said

chemical examination reports Exs.P.9 and Exs.P.10 would go to show that the bloodstains contained in the clothes of the deceased and the

newspaper were one and the same with the bloodstains found in the Aruval M.O.12, classified as human blood belonging to B Group. The said

finding in the Chemical and Serological report that the bloodstains in both the weapon and the clothes of the deceased are one and the same would

certainly connect the accused with the commission of murder of Mohanasundaram, since the weapon was recovered only on his confession. This

scientific and circumstantial evidence had not only corroborated the oral testimony of P.Ws.1 and 2 but also strengthen the case of the prosecution.

The motive arising out of the enmity in between the accused and the deceased Mohanasundaram were clinchingly proved by the evidence of

P.Ws.3 and 4. Therefore, the argument of the learned Counsel for the appellant that the finding of the lower Court in convicting and sentencing the

accused is contrary to law and weight of evidence is not sustainable. The overall evidence adduced by the prosecution had clinchingly proved the

prosecution case without any reasonable doubt.

Therefore, we are of the considered view that the prosecution had proved the case framed against the accused beyond all reasonable doubt.

Accordingly, the Judgment of conviction and sentence passed by the lower Court against the accused cannot be set aside but it is to be confirmed.

In fine, we confirm the conviction and sentence of the lower Court passed against the accused in its Judgment dated 29.08.2005 passed in

S.C. No. 52 of 2005 against the accused and therefore, the appeal deserves no merit and accordingly dismissed. Since he is on bail, the trial Court

is directed to take steps to secure the custody of the accused to undergo the remaining period of sentence.