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2020 Supreme(Mad) 2301
IN THE HIGH COURT OF MADRAS
M.M. Sundresh, D. Krishnakumar, JJ.
Kozhi Prakash and Ors. - Appellant
Versus
The Inspector of Police, Kannankurichi Police Station - Respondent
Criminal Appeal Nos. 688, 766 of 2018 and 537 of 2019
Decided On : 23-12-2020
For the Appellant : Philip Ravindran Jesudoss and V. Parthiban for M. Mohamed Saifulla
For the Respondent: K. Prabhakar, Addl. Public Prosecutor
Headnote:
Indian Penal Code,1860 - Sections 120-B, 302 and 506(ii) - Criminal Procedure Code,1973 - Sections 313, 161 , 173 and 172 - Code of Criminal Procedure, 1898 - Section 173(4) - Offence of murder – Examination of accused – Appeal against convicted - Deceased was making a demand for payment of water can charge from his wife. A2 and A3 are the friends of A1 - They went to the house of the deceased and threatened him. While A1 threatened deceased by questioning him on the demand for payment from his wife, A2 and A3 pacified him and took him away stating that deceased would be taken care of later - This was stated to have been done in the presence of P.W. 1-wife the deceased and P.W. 2-father - While the deceased was walking along with P.W. 1, he was seen by A1, who instructed A2 and A3 to catch deceased and cut him causing death with a single stab injury. A2 and A3 were stated to have caught hold of deceased. P.W. 7 and another witness took the deceased in a two-wheeler to a Government hospital - Deceased was pronounced dead. P.W. 1 thereafter came to the police station and gave a complaint which was registered by P.W. 12-Sub-Inspector of Police under Ex. P17 at about 10.30 p.m – Held, assessment of the evidence of these witnesses, delay cannot be attributed on the part of the Investigating Officer in sending the statements recorded under Section 161 Cr.P.C - We are inclined to accept the evidence to effect that A1 has indeed committed the offence - There is no motive on part of P.W. 1 to implicate A1 as she is not an interested witness. The evidence of P.Ws. 1 and 2 could also be accepted with respect to A1's motive – Court have already discussed that same evidence cannot be extended to A2 and A3 as it is they who took A1 from the place of first occurrence - Had the accused were drunk during the first occurrence as against the second occurrence, for which there is no such evidence of intake of alcohol, though they were stated to be coming from liquor shop. Thus, we do not find any material to implicate accused for charges framed under Sections 120-B and 34 IPC. The evidence regarding conspiracy and common intention does not inspire the confidence of this Court - Evidence adduced by P.W. 1 with specific reference to A1 and his overt act and motive - Appeals in Criminal Appeal No. 537 of 2019 and Criminal Appeal No. 766 of 2018 stand allowed in toto, setting aside judgment of the trial Court as against A2 and A3 while Criminal Appeal No. 688 of 2018 stands allowed in part
JUDGMENT :
M.M. Sundresh, J.
1. The appellants were arrayed as A1 to A3 in S.C. No. 85 of 2015 on the file of the I Additional Sessions Court, Salem. They were charged with the following charges:-
| A | 1st Charge | Criminally Conspired to commit the murder of deceased under Section 120(B) IPC against A1 to A3 |
| B | 2nd Charge | Murder - Under Section 302 IPC- against |
| C | 3rd Charge | Common Intention to commit murder - Under Section 302 r/w 34 IPC - against A2 and A3 |
| D | 4th Charge | Criminally intimidated the witnesses- under Section 506(ii) IPC - against A1. |
| E | 5th Charge | Criminally intimated the witnesses with common intention - Under Section 506(ii) r/w 34 IPC - against A2 and A3 |
2. Accordingly, the trial Court convicted A1 under Sections 120-B, 302 and 506(ii) IPC while A2 and A3 were convicted under Sections 120-B, 302 r/w 34 IPC and 506(ii) r/w 34 IPC with the major punishment of life sentence among others.
3. Criminal Appeal No. 668 of 2018 is filed by A1, Criminal Appeal No. 537 of 2019 is filed by A3 and Criminal Appeal No. 766 of 2018 is by A2.
Prosecution Version:
4. A1 was having prior enmity with the deceased as the deceased was making a demand for payment of water can charge from his wife. A2 and A3 are the friends of A1. They went to the house of the deceased on 01.11.2014 and threatened him. While A1 threatened the deceased by questioning him on the demand for payment from his wife, A2 and A3 pacified him and took him away stating that the deceased would be taken care of later. This was stated to have been done in the presence of P.W. 1-wife the deceased and P.W. 2-father. Thereafter, while the deceased was walking along with P.W. 1, he was seen by A1, who instructed A2 and A3 to catch the deceased and cut him causing death with a single stab injury. A2 and A3 were stated to have caught hold of the deceased. P.W. 7 and another witness took the deceased in a two-wheeler to a Government hospital. The deceased was pronounced dead. P.W. 1 thereafter came to the police station and gave a complaint which was registered by P.W. 12-Sub-Inspector of Police under Ex. P17 at about 10.30 p.m.
5. P.W. 14 recorded the statements, prepared the observation mahazar, inquest report and filed the final report on 04.02.2015. The case was committed to the Principal District Judge, Salem and thereafter made out to the I Additional Sessions Court, Salem for trial. After framing the charges, the same was read over and explained to the accused, who pleaded not guilty.
6. The prosecution had examined fourteen witnesses in total while marking Exs. P1 to P27 apart from M.Os. 1 to 12. On behalf of the accused, neither oral nor documentary evidence was let in. The accused were placed with the incriminating materials while complying with the mandate of Section 313 Cr.P.C. They, accordingly, denied such materials put against them. The trial Court, upon considering all the offences before it, was pleased to render conviction, as aforesaid. Laying a challenge to set aside the judgment rendered, all the accused have filed these three appeals.
Witness, Documents and Material Objects:
7. P.W. 1, is the wife of the deceased and also the eye witness. She not only stated about the motive qua the prior occurrence but also the actual occurrence. In her cross-examination, she has stated that she and her husband were walking on the road. The accused were present in the liquor shop, which was situated on the way. A1 shouted that the person who insulted his wife by making a demand is going and asked the others to capture him to finish him off. Accordingly, A2 and A3 ran and caught hold of the deceased while A1 used M.O. 5 which is a USA Super knife and stabbed the deceased on his chest. At that point of time, P.W. 1 shouted and P.W. 2, who is her father-in-law came from the nearby hotel in which he was taking food. P.W. 3 a
