Sriramulu & Ors.  INSC 289 (12 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 300 of 2003 G.
Vivekanandan ...Appellant Versus Sriramulu & Ors. ...Respondents
Dr. ARIJIT PASAYAT,
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.
version as unfolded during trial is as follows:
Vivekanandan (PW2) are brothers and sons of the deceased. Gopalakrishnasamy
(PW5) is the brother of the deceased.
(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 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 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.
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 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.
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) 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.
(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:
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 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.
Intact. Lung : PaLE
NO RIB FRACTURE, Heard:
Pale, Chambers empty,
Liver, Spleen: Pale.
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 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.
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.
It was also pointed
out that there is no delay in dispatching to Magistrate (Ex.19).
counsel for the respondent on the other hand supported the judgment.
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 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.
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.
appeal is disposed of accordingly.
(Dr. ARIJIT PASAYAT)