Madras High Court
Mohammed Imathathullah vs State Represented By on 19 September, 2024
Author: M.S. Ramesh
Bench: M.S. Ramesh
2024:MHC:3395
Crl.A.Nos.624 of 2018 & 51 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 28.08.2024
Pronounced on 19.09.2024
CORAM :
THE HONOURABLE Mr. JUSTICE M.S. RAMESH
AND
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
Crl.A.Nos.624 of 2018 & 51 of 2019
Mohammed Imathathullah
Alias Mohammed Yasin
... Appellant/A2 in Crl.A.624/2018
Hakeem
... Appellant/A1 in Crl.A.51/2019
Vs.
State represented by
Inspector of Police,
Maduravoyal Police Station,
Chennai.
Crime No.383/2014
... Respondent/Complainant in both Appeals
Common Prayer: Criminal Appeals filed under Section 374(2) of the
Criminal Procedure Code to set aside the conviction and sentence imposed in
the judgment dated 07.06.2018 against the appellants/accused in
S.C.No.10/2016 on the file of the learned III Additional Sessions Judge,
Poonamallee, Tiruvallur District and acquit the appellants.
For Appellant
Page 1 of 16
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Crl.A.Nos.624 of 2018 & 51 of 2019
in Crl.A.No.624/2018 : Mr.V.Parthiban
For Appellant
in Crl.A.No.51/2019 : Mr.I.Abdul Basith
For Respondent : Mr.A.Gokulakrishnan
in both Appeals Additional Public Prosecutor
*****
COMMON JUDGMENT
C.KUMARAPPAN, J.
The Criminal Appeal No.51 of 2019 was filed by 1st accused. Similarly,
Criminal Appeal No.624 of 2018 was filed by 2nd accused. Both the appeals
have arisen from the order of conviction passed in SC.No.10 of 2016 dated
07.06.2018 by the learned III Additional Sessions Judge, at Poonamallee,
Tiruvallur District for the offence under Section 302 r/w 34, 341 and 323 (3
counts) of IPC.
2. The case of the prosecution is that, the accused and the deceased
Vijay are known to each other. It appears that on 16.03.2014 at about 5.00
p.m, the deceased Vijay questioned the accused of their high handed act of
consumption of liquor in the middle of the road. Enraged by the hegemony
shown by the deceased, the accused developed enmity with the deceased. To
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Crl.A.Nos.624 of 2018 & 51 of 2019
avenge their revenge, they proceeded to the deceased Vijay's uncle
Jaysankar's [PW2] house on 24.03.2014 at about 10.00 a.m. But, the
deceased Vijay fortunately was not in PW2's house. Realising the
unquenched anger of the accused against the deceased, the family members
decided to lodge a police complaint against them. In furtherance thereof, on
the same day [24.03.2014] the deceased Vijay, and his brother Manikandan
[PW1], his uncle Jaysankar [PW2] and his paternal uncle Kannan [PW10]
along with his friends viz., Salaman [PW3] and Sudhakar [PW4] proceeded
to the police station to give a police complaint. At about 13.15.p.m, when all
of them were near Sree Lakshmi Nagar, 7th main road junction, the 1st and 2nd
accused on seeing Vijay (deceased), waylaid him and indiscriminately
stabbed him with knife. While, PW1, PW2 and PW10 intervened to protect
the deceased, they also sustained injuries. Hence, a complaint [Ex.P1] was
given by PW1 at about 1.45.p.m.
3. On the basis of complaint [Ex.P1], FIR [Ex.P14] was registered by
the Investigating Officer Mr.Anandbabu [PW18]. After that, he made
arrangements to send the injured persons viz., PW1, PW2 and PW10 to the
hospital for treatment. He also proceeded to the scene of occurrence, and
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prepared the observation mahazar [Ex.P2] and rough sketch [Ex.P15],
besides, collecting the sample sand, and blood stained sand. Between 16.45
to 18.45 hours, he conducted inquest over the body of the deceased Vijay and
prepared the inquest report [Ex.P16]. Thereafter, he made arrangements for
postmortem of the body of the deceased. On the very same day, he recorded
the statement of the eye witnesses viz., PW1 to PW5 and PW9.
4. On 25.03.014, based on the intelligence information, he arrested
both the accused near Maduravoyal Tollgate. While interrogating, they
voluntarily gave confession statement, and the same was recorded in the
presence of witnesses Karthik [PW15] and Kumaran. After recording the
same, a discovery of fact was effected by recovering blood stained shirt, along
with blood stained knife at the instance of 1st accused. Similarly, blood
stained shirt and blade was recovered at the instance of the 2nd accused.
Further, the Investigating Officer ascertained the identity of the accused
through PW1, PW2 and forwarded the recovered materials to the
jurisdictional Magistrate. He also made arrangements for forensic analysis of
the weapon. After receipt of the forensic report, he recorded the statement of
the Scientific Officer. Further, he examined the doctor, who gave treatment to
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the injured witnesses, and the postmortem Doctor. Thus, after completing the
investigation, he laid the charge sheet against the accused for the offence
under Sections 302 r/w 34, 341, 324 [3 counts] of IPC.
5. Before the Trial Court, to prove the prosecution case, they relied as
many as 22 documents as Exs.P1 to P22, and 13 Material Objects as M.O.1
to M.O.13. Besides, 18 witnesses were examined as PW1 to PW18.
6. The Trial Court, after having considered the oral and documentary
evidence, have arrived at a conclusion that the prosecution has proved all the
charges against the accused 1 and 2 beyond reasonable doubts and found that
the accused are guilty for the offences under Sections 341, 323 [3 counts]
and 302 r/w 34 of IPC and sentenced them as follows:-
Accused Offence Punishment
302 r/w 34 IPC To undergo “Life Imprisonment” and to pay
a fine of Rs.1000/- in default of payment of
fine, to undergo rigorous imprisonment for a
period of 6 months
A1
341 of IPC To undergo simple imprisonment for one
month
323 [3 counts] of To undergo Rigorous imprisonment for 6
IPC months for each counts
A2 302 r/w 34 IPC To undergo “Life Imprisonment” and to pay
a fine of Rs.1,000/- in default of payment of
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Accused Offence Punishment
fine, to undergo rigorous imprisonment for a
period of 6 months
341 of IPC To undergo simple imprisonment for one
month
323 [3 counts] of To undergo Rigorous imprisonment for 6
IPC months for each counts
7. Aggrieved with the order of conviction, 1st accused preferred
Crl.A.No.51 of 2019, and 2nd accused preferred Crl.A.No.624 of 2018.
8. Mr.I.Abdul Basith, learned counsel for 1st accused would vehemently
contend that there are wild contradictions regarding the time of occurrence
and registration of FIR. The learned counsel would further contend that, the
very presence of the witnesses and their injuries are doubtful, and that the
accused have been falsely implicated in this case and the same is evidently
vindicated through the accident register, wherein the alleged eyewitnesses
have referred to the Doctor [PW16] that they have been attacked by unknown
persons, while the accused and their friend were known to each other. It was
further contended that, though the prosecution has stage managed the
discovery of fact, there are no links between the material discovered and the
occurrence. They also would contend that the delay of 3 hours in registration
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of FIR would demonstrate the fallacy in the prosecution case.
9. Though the learned counsel for the 2nd accused Mr.V.Parthiban
reiterated the argument of the 1st accused, he further proceeded to argue by
contending that the Trial Court has miserably failed to take into consideration
of major and vital contradiction, which affects the root of the case. He would
also project the unnatural conduct of the witnesses in not evincing any
interest to protect the life of the deceased. It was also the contention of the
learned counsel that there are no explanation as to how the blood group “B”
found in the recovered articles. Hence, prayed to allow the appeal. Thus, the
both learned counsels in a unison voice would contend that the prosecution
has miserably failed to prove their case and prayed to allow the appeals.
10. Per contra, the learned Additional Public Prosecutor would
vehemently contend that the prosecution has proved the case with
overwhelming evidence, qua through the eye witnesses. He would contend
that the injured witnesses must be kept in a high pedestal and that the
defence has not put forth any acceptable material to disbelieve the evidence of
the eye witnesses. It was also contended by the learned Additional Public
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Prosecutor that the alleged discrepancy found in the accident register will in
no way helpful to the accused as it was subsequent to the registration of FIR,
as the FIR has the names of both the accused. Furthermore, it is the
contention of the learned Additional Public Prosecutor that the entry made by
the Doctor would be relevant, only with reference to the injuries sustained by
the witnesses and not that the statement recorded by the Doctor for the cause
of injury. The learned Additional Public Prosecutor would further contend
that the recovery has been proved and that the recovered materials, had a link
with the occurrence, as the knife and the dress materials had blood stains of
the deceased blood grouping. Therefore, the learned Additional Public
Prosecutor would submit that the prosecution has proved the case beyond
reasonable doubts. Hence, prayed to dismiss the appeals.
11. We have given our anxious consideration to either side
submissions.
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12. The main contention of the appellants is the doubt regarding the
presence of the eyewitnesses at the scene of occurrence. In this regard, the
learned counsel would rely upon the chief examination of PW1, wherein he
would state that, before they visited the police station, all of them [PW1,
PW2 and PW10] had gone to the hospital and thereafter, went to the police
station. While perusing the evidence of PW1, though he refers about the visit
to the hospital, it was at 1.30.p.m, while the complaint was given at 1.45.p.m.
Besides, he and the other injured persons [PW2 and PW10] were again
referred to the hospital by 6.00.p.m. Therefore, the admission regarding the
mere visit to the hospital by 1.30.p.m, cannot be a material contradiction,
since the fact remains that he was in the hospital only upto 1.30.p.m.
Pertinently, the complaint was given immediately at 1.45 p.m, within 30
minutes from the time of occurrence, qua from 1.15.p.m. Besides, the
witnesses [PW1, PW2 and PW10] were again sent to the hospital as
evidenced from A.R copy Exs.P9 to P11.
13. However, the learned counsels appearing for the appellants would
draw the attention of this Court that in a AR copy Exs.P9 to P11, it has been
mentioned that PW1, PW2 and PW10 were assaulted by the unknown
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persons. Therefore, contended that, had there been any assault by these
accused, who are known to the witnesses, definitely the A.R copy must have
an entry that they were assaulted by known persons and hence, there is a
reasonable doubt on the involvement of the accused. But, this Court is of the
view that the accident register came to existence on 24.03.2014 at about 6.50
p.m, but the FIR was registered prior in point of time against these accused.
Fortunately and more pertinently, the FIR even prior to the time of A.R copy
Exs.P9 to P11, reached to the Court at about 4.10.p.m. Therefore, we are of
the firm opinion that the reference in the accident registers made by the
Doctor that the injured were assaulted by the unknown persons cannot be
given any undue weightage, and in fact assumes no significance at all, as the
name of the accused were found in the FIR, which reached the Court, well
prior to the time mentioned in AR copy. In this regard, the learned Additional
Public Prosecutor relied upon the Division Bench judgement of this Court in
Annamalai Vs. State made in Crl.A.No.1431 of 2004, and would contend
that in the place of ocular evidence, the accused cannot take any advantage
out of the entry in AR copy. Further, the reference in the accident register
cannot be a conclusive proof.
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14. The learned counsel for the appellants would draw the attention of
this Court about the absence of any initiative to provide first aid to deceased.
For ready reference, the very admission of PW1 is extracted hereinbelow:-
“/////////////////////////// vd; mz;zid btl;oa gpwF vd; mz;zd;.
Fw;WapUkhf. bfhiya[khf ,Ue;jhh;/ //////////////////////////////////////mjd; gpwFk;.
vd; mz;zid kUj;Jtkidf;F Tl;or; bry;y eh';fs;
Kaw;rpf;ftpyi
; y/”
No doubt, it was admitted by PW1 that he did not take his brother to the
hospital. But, while looking at the evidence of other eyewitnesses PW2,
PW3, PW4 and PW10, it is amply clear that the death of the deceased was
instantaneous. If we construe the evidence of PW1, in the background of the
other remaining witnesses, the admission made by PW1 that he did not take
any initiative to take his brother to the hospital, would only further the theory
of prosecution. Therefore, mere imperfect use of vocabulary by PW1 cannot
be a ground to discredit his trustworthiness. Therefore, the stray statement of
PW1 cannot be taken in isolation with the other evidence.
15. If we read the evidence of PW1, PW2 and PW10 carefully and
harmoniously, their description of events are simple and straight forward, and
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the cross examination does not demolish their version of events. All of them
withstood the onerous test of cross examination. In the case in hand, the
occurrence is a daylight occurrence. It is well settled principle of law that
where a witness to the occurrence is himself an injured in the incident, the
testimony of such witness is generally considered to be very reliable, as he is
a witness that comes with a built-in guarantee of his presence at the scene of
crime and also on the ground that it is unlikely to spare his actual assailants.
Therefore, to contradict such strong witnesses or to discredit their reliability,
it is the duty of the appellants/accused to demonstrate a concrete contra
evidence. But, the appellants by relying upon minor variation in respect of a
timing and from an isolated statement taken in out of context, attempted to
discredit them, which is not permissible, that too when the witnesses are
injured in the same occurrence.
16. Apart from that, the prosecution has also established the discovery
of fact through the accused. In the presence of PW15, the discovery of fact
was effected. While perusing the evidence of PW15, it appears to be natural.
But, it was contended that he was a chance witness. Taking into
consideration of the place where he was invited qua the Toll plaza, though he
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may be a chance witness, there are no reasons to disbelieve his presence at
the place of recovery and his evidence. He also withstood the cross
examination and he has categorically spoken about the recovery of blood
stained knife and shirt. The prosecution had taken effective steps to identify
the grouping of blood stain found in the knife discovered at the instances of
the accused. As a matter of evidence, in both the knives, the blood group has
been identified as “B”. This blood grouping tallies with grouping of the
blood stain recovered from the dresses of the deceased.
17. At this juncture, the learned counsel for the appellants would
contend that the knife recovered from A1 and A2 also have the stain which
have the blood grouping of “O”, which is a clinching evidence to show that
these weapons are not related to the occurrence as it contains two blood
groups, which are illogical. Here, while looking at the case, the accused also
attacked the witnesses. However, the prosecution did not test the blood
grouping of those witnesses. Therefore, the other blood grouping of the
blood stains would also be a proof against the accused. Therefore, this Court
is of the firm view that the prosecution has established the connection of the
recovered weapon with the occurrence by proving similarity of blood
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grouping between the blood stain contained in the weapon and in the dress
materials of the deceased.
18. It is also pertinent to mention here that for the reason best known
to the accused, the evidence of one of the eyewitness PW3 was not cross
examined, where he had clearly implicated the accused with occurrence. In
addition to the points discussed hereinabove, this unchallenged testimony is
also an additional factor against the accused.
19. Before giving our ultimate finding, for easy understanding, we
would like to recapitulate the points for our ultimate decision. The same are:-
1. Though there is a discrepancy in the accident register, the same
become insignificant, in view of the prompt and prior receipt of the FIR
by the Court.
2. All the witnesses had consistently spoken about the occurrence and
also withstood the arduous cross examination.
3. The witnesses PW1, PW2 and PW10 are the injured witnesses and no
ground was established to discredit their trustworthiness.
4. The prosecution has proved the recovery and established the
connection to the occurrence.
5. The contradictions relied are minor and are not in respect of the core
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issue involved in this case.
20. Thus, we are of the firm opinion that the prosecution has
established the charge beyond reasonable doubts. Therefore, there are no
grounds to interfere with the order of conviction dated 07.06.2018 passed by
the Trial Court in SC.No.10 of 2016.
21. In the result, both the Criminal Appeals stand dismissed.
[M.S.R., J.] [C.K., J.]
19.09.2024
Index:Yes
Neutral Citation: Yes
Speaking order: Yes
kmi
To
1. The III Additional District and Sessions Judge,
Poonamallee, Tiruvallur District.
2. The Inspector of Police,
Inspector of Police,
Maduravoyal Police Station,
Chennai.
3.The Public Prosecutor,
High Court of Madras.
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M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
kmi
Pre-delivery judgment made in
Crl.A.Nos.624 of 2018 & 51 of 2019
19.09.2024
https://www.mhc.tn.gov.in/judis
