BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/03/2007 CORAM: THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Crl.A.(MD) No.872 of 2004 Ganesan .. Appellant vs. State Rep. by the Inspector of Police, Vellianai Police Station, Karur District. Crime No.69 of 2003 .. Respondent Criminal Appeal filed under Section 374 Cr.P.C against the Judgment of conviction and sentence dated 22.6.2004 made in S.C.No.13 of 2004 on the file of the Sessions Judge, Karur. !For appellant : Mr. M.Patturajan ^For respondent : Mr.S.P.Samuel Raj Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM, J)
Challenging the judgment of the Court of Sessions Division, Karur dated
22.6.2004 made in S.C.No.13 of 2004, whereby the sole accused/appellant stood
charged, tried and found guilty of the offence under Section 302 IPC and
sentenced to undergo life imprisonment along with a fine of Rs.1000 and default
sentence.
2. The short facts necessary for the disposal of the appeal can be stated
thus:
PW.1 is the son of the deceased. The deceased was a cattle broker. He
purchased a buffalo for the father of the accused and handed over the same but
subsequently, it was not found worthy. Then, he wanted to sell it back. It was
also resold by the deceased but the consideration could not fetch the amount for
which it was purchased and hence, the family people were aggrieved over the
same. On the date of occurrence that was on 3.5.2003 at about 9.00 a.m., the
mother of the accused one Thangammal and the mother of the deceased viz.,
Nallammal got a quarrel and the deceased interfered and beat Thangammal, the
mother of the accused. After some time, on the same day of occurrence at about
12.00 noon, when the accused came back to his house, he was informed about the
entire incident by Thangammal. Immediately, the accused came over with a wooden
part of a spade to the deceased, who was sleeping in a thatched shed, and
attacked the deceased on his head. Immediately, he ran away from the place of
occurrence. PW.1 and PW.6 took him to the Government Hospital, Karur and
therefrom, he was taken to the Government Hospital, Trichy. When he was on his
way, he died and he was declared died in the Government Hospital, Trichy and the
occurrence was witnessed by PW.1 and PW.3.
(b) PW.1 went to the respondent police station and gave a report to PW.19,
the Head Constable at about 12.40 p.m. and on the strength of the same, a case
came to be registered in Crime No.69/2003 under Section 307 IPC, originally, and
F.I.R.16 was despatched to the Court.
(c) PW.20 took up investigation, proceeded to the spot, made an inspection
and prepared an Observation Mahazar Ex.P.6 in the presence of witnesses and
prepared Rough Sketch Ex.P.17 and on the intimation of death of the deceased,
the case converted into one under Section 302 IPC. Ex.P.18 Section altered
F.I.R. was despatched to the Court.
(d) On receipt of copy of the altered F.I.R, PW.22 took up investigation,
proceeded to the scene of occurrence and made an inspection. He conducted
inquest on the dead body of the deceased in the presence of witnesses and
panchayatdars. He prepared an Inquest Report Ex.P.20 and forwarded a
requisition for the purpose of conducting post-mortem.
(e) On receipt of the requisition, On 4.5.2003, PW.11, the Doctor,
attached to Karur Government Hospital, conducted autopsy on the dead body of the
deceased and he found injuries as described in the Post-Mortem Certificate,
issued by him. Ex.P.4 is the Post Mortem Certificate, wherein the Doctor PW.11
has opined that the deceased would appear to have died of shock and haemorrhage
due to head injury.
(f) Pending investigation, the accused was arrested on 3.5.2003 at about
11.15 p.m. and he gave a confessional statement in the presence of witnesses and
pursuant to his confessional statement, a wooden part of the spade (MO.1) was
recovered under cover of Mahazar Ex.P.10. All the material objects recovered
from the scene of occurrence and from the dead body were subjected to chemical
analysis, which resulted in two reports viz., Chemical Analysis Report, Ex.P.13,
and Serological Report, Ex.P.14.
(g) On completion of the investigation, the Investigating Officer filed
final report against the appellant/accused. The case was committed to the Court
of Sessions and necessary charge was framed against the accused.
3. In order to substantiate the charge levelled against the accused, the
prosecution examined 22 witnesses, marked 20 documents and 6 MOs. On
completion of the evidence on the side of the prosecution, the accused was
questioned under Section 313 Crl.P.C. as to the incriminating circumstances
found in the evidence of the prosecution witnesses. No defence witness was
examined. However, Ex.D.1 was marked on the side of the defence. After hearing
the arguments advanced by both sides, the trial Judge found the
appellant/accused guilty of the offence under Section 302 IPC and awarded
punishment as stated above. Hence, the appeal, at the instance of the accused.
4. Advancing his arguments, learned counsel for the appellant would submit
that in the instant case, the prosecution examined 9 eye-witnesses, out of whom,
8 and 9 were independent witnesses and they have turned hostile. The evidence
available to the prosecution are the evidence of close relatives to each other
and their evidence if carefully scrutinised, will not stand the scrutiny of test
and hence their evidence cannot be accepted. Apart from that, there are a lot
of discrepancies as to the material particulars.
5. Learned counsel would further add that, according to the prosecution,
the motive attributed is that, two months prior to the occurrence, the deceased
purchased a buffalo for the father of the accused and it was handed over to him
and the accused found it to be not worthy enough and he asked the deceased to
resale it and, accordingly, it was resold it but it fetched lesser
consideration, for which, the family members of the accused were on inimical
terms with the family members of the deceased. Thus, it seems the motive, even
according to the prosecution, is too remote.
6. The learned counsel would further add that on the date of occurrence,
at about 9.00 a.m., there was an incident in which the mother of the accused,
one Thangammal was beaten by the deceased pursuant to the quarrel between the
women folks. It is pertinent to point out that Thangammal went to the police
station, and a medical memo was issued to her and she went to the Government
Hospital and had treatment but the prosecution has neither produced the
complaint given by her nor any document from the Government Hospital. In the
instant case, it was the accused, who produced Ex.D.1, medical memo given to the
mother of the accused, Thangammal and she went over for treatment. The earliest
First Information Report, as could be seen from the materials available, was
suppressed by the prosecution. According to the prosecution case, the
occurrence had taken place at about 12.00 noon and the deceased was taken to the
Government Hospital, Karur and thereafter, he was taken to the Government
Hospital, Trichy where he was declared dead. At this juncture, it is pertinent
to point out that, originally, a case came to be registered in Crime No.69/2003
under Section 307 IPC but, at about 12.40 p.m, the section of case was altered
into one of Section 302 IPC.
7. In the instant case, the evidence of the eye-witnesses are not
believable and the evidence of PW.1 could not be believed. Even as per the
prosecution, there was an incident at about 9.00 a.m. on the date of occurrence
in which Thangammal, the mother of the accused was beaten and at the moment,
when the accused came by 12.00 noon, he was informed of the incident, being
provoked by the incident in which the mother of the accused was attacked, he
attacked the deceased with a wooden part of a spade and that is also an
indicative of the fact that there was no intention to kill him or to cause him
such injuries, which are in the ordinary course, would cause death. Hence, the
act of the accused would not attract the penal provisions of murder but it would
attract the provisions of Section 325 IPC, which has also got to be considered
by this Court.
8. The Court paid its anxious consideration on the submissions made by
either side and also perused the recorded evidence, both oral and documentary.
9. It is not a fact in controversy that one Arumugam, father of PW.1
following the incident on the date of occurrence died as put-forth by the
prosecution and the case case registered, originally, under Section 307 IPC and
on his death, it was converted into one of Section 302 IPC and after getting a
copy of the F.I.R., the Investigating Officer, proceeded to the scene of
occurrence, made an inspection and also conducted inquest on the dead body of
the deceased in the presence of witnesses and panchayatdars and prepared an
Inquest Report and the dead body was also subjected to Post-Mortem by the Doctor
PW.11 and he issued Post-Mortem Certificate Ex.P.4 wherein he has opined that
the deceased would appear to have died of shock and haemorrhage due to injury on
the head. Apart from that, the accused had never questioned the fact that the
deceased died out of homicidal violence at any stage of the proceedings before
the lower Court. Thus, without any difficulty, the Court can record that the
deceased died out of homicidal violence and recorded so.
10. In order to substantiate the case of the prosecution that it was the
accused who attacked the deceased with a wooden part of a spade on the head of
the deceased and gave such injuries, which were direct consequence of the death,
the prosecution examined 9 eye-witnesses, out of whom, as rightly pointed out,
PW.8 and PW.9 turned hostile. The eye-witnesses are inter se related to the
deceased. Merely, because the eye-witnesses are relatives, their evidence
cannot be discarded but their evidence has got to be looked into with a great
care and caution and the Court is mindful of the said principle of law. After
such test, the Court is satisfied that the evidence of these witnesses has got
to be accepted. All the eye-witnesses, according to them, at the time
of occurrence, were nearby sitting and chatting with each other and the deceased
was sleeping in a thatched shed. At that time, the accused attacked the deceased
with a wooden part of a spade. Immediately, all of them chased the accused but
could not catch him. The accused sped away from the place of occurrence. The
evidence of all the eye-witnesses remain unshaken despite of cross-examination
by the defence.
11. It is pertinent to point out that the evidence of these eye-witnesses
stood fully corroborated by the medical evidence and further, it has to be
pointed out that the accused has also given a confessional statement and the
admissible portion of the same was marked as Ex.P.8. Insofar as extra-judicial
confessional statement given to PW. 13, V.A.O., before accepting the same, the
Court has to apply the following tests:
(a) firstly to whom, it is made.
(b) secondly, whether such confession inspires the confidence of the
Court.
(c) thirdly, whether the narration of the incident is what the case
of the prosecution.
If these three tests are applied, the Court is satisfied, the extra-judicial
confessional statement given to the V.A.O. PW.13 is believable and has to be
acted upon.
12. Yet another circumstance against the accused is the recovery of M.O.1
weapon pursuant to the confession in the presence of the witnesses and the
evidence in that regard also remain unshaken. Thus, the recovery of the
material object viz., weapon of the crime pursuant to the confession would be
pointing to the nexus of the accused with the crime. Thus, the direct evidence
is fully corroborated with the medical evidence. Apart from that, there is
extra judicial confessional statement pointing to the complicity of the accused
with the crime.
13. The contention put-forth by the learned counsel for the appellant that
it is highly doubtful whether Ex.P.1 is the First Information, the Court is
unable to agree with the same. In the instant case, originally, the First
Information was given by PW.1 and on the strength of which, a case was
registered, originally, for the offence under Section 307 IPC and thereafter,
the case was altered to one under Section 302 IPC on receipt of the death
intimation and amended F.I.R was also sent to the Court. It is pertinent to
point out that, had the contention of the learned counsel true, there was no
impediment for the police to directly register the case under Section 302 IPC
and there was no necessity for the police to register a case under Section 307
IPC and subsequently altering to Section 302 IPC. As could be seen, available
materials are indicative of the fact that Ex.P.1 is the earliest document, which
was, originally, registered under Section 307 IPC and only on the death of the
deceased, the case was altered to Section 302 IPC. Hence, the Court is unable
to notice any fault or any infirmity in the prosecution case in this regard.
Thus, the contention put-forth by the learned counsel for the appellant has got
to be rejected.
14. Insofar as the second line of argument that the even if the
prosecution has proved the case against the accused, the act of the accused
would not attract the penal provisions of murder, the Court is able to see
sufficient force in the contention of the learned counsel. On the date of
occurrence, at about 9.00 a.m., one Thangammal, the mother of the accused was
beaten by the deceased when other persons were also present and in this regard,
she was also issued a medical memo by the police station and the accused has
produced the same, which was marked as Ex.D.1. Apart from that reading of the
F.I.R reveals that that there was an incident in which Thangammal, the mother of
the accused was beaten by the deceased and at about 12.00 noon on the same day,
when the accused came to his house, he was informed about the incident.
Naturally, he got provoked and he went to the spot with a wooden spade and
attacked the deceased. Had it been his intention to cause death, he would have
attacked with the spade but he had not done so. It is also well within the
knowledge of the accused that weapon of the crime could cause death. Under the
circumstances, the act of the accused would not attract the penal provisions of
murder but would attract the provisions of 304 (Part II) of IPC.
15. For the reasons stated above, the finding of the lower Court terming
the act of the accused as murder under Section 302 of IPC is modified to one of
Section 304 (Part II) of IPC and the accused/appellant is sentenced to undergo
five years Rigorous Imprisonment. The fine amount paid under Section 302 IPC is
to be treated as fine under Section 304 (Part II) of IPC. The period of
sentence already undergone by the accused/appellant is ordered to be given set
off.
16. In the result, with the above modification, the appeal is dismissed.
asvm
To
1.The Sessions Judge,
Karur.
2.Inspector of Police,
Vellianai Police Station,
Karur District.
3.The Additional Public Prosecutor,
Madurai Bench of
the Madras High Court,
Madurai.