BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 28/06/2010 Coram The Honourable Mr.Justice M.CHOCKALINGAM and The Honourable Mr.Justice M.DURAISWAMY Criminal Appeal (MD) No.173 of 2009 S.Sahayaraj alias Raja alias Sahayam ...Appellant/ Sole Accused vs The State, rep.by The Inspector of Police, Kombai Police Station, Theni District. (Crime No.127/2007) ...Respondent/ Complainant Appeal under Section 374 of the Code of Criminal Procedure against the judgment of conviction and sentence passed in S.C.No.34/2008 on the file of the learned Additional Sessions Judge, Fast Track Court, Periyakulam, dated 19.12.2008. !For Appellant ... Mr.K.Samidurai, (Legal Aid Counsel). ^For Respondent ... Mr.N.Senthurpandian, Addl.Public Prosecutor. :JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM,J)
Challenge is made to the judgment of the Additional Sessions
Division, Fast Tract Court, Periyakulam, dated 19.12.2008, made in
S.C.No.34/2008, whereby the appellant/sole accused stood charged under Section
323 and 302 IPC, tried and found guilty thereunder and imposed the punishment
one year R.I. for the offence under Section 323 IPC and life imprisonment for
the offence under Section 302 IPC, a fine of Rs.5,000/-, in default to undergo
six months simple imprisonment and both the sentences were ordered to run
concurrently.
2.The short facts necessary for the disposal of these appeals
can be stated as follows:
(a)P.W.1 Anthonimuthu is a resident of Kombai Village within
the jurisdiction of the respondent police. The deceased Kanmani @ Kannimariyal
is his brother Savarimuthu’s daughter and she was given in marriage to the
accused Sahayaraj @ Raja @ Sahayam nine years prior to the date of occurrence.
During the relevant time, the accused Sahayaraj, his wife Kanmani and their
three children were living in a house belonging to P.W.6 Madasamy on the basis
of ‘Othi’ for a sum of Rs.25,000/-.
(b)Since the elder brother of the accused died, his family
members were living at Periyakulam and the accused wanted to shift his abode
also to Periyakulam for which course of action the deceased Kanmani was not
amenable and therefore they often used to quarrel with each other and P.W.1 and
others pacified them on such occasions. The accused got back Rs.17,000/- from
the house owner and spent the same and when there was a dispute arose between
the accused and the deceased, a panchayat was convened, wherein P.Ws.1, 5, 7 and
8 participated and pacified them.
(c)At 6.30 p.m. on 29.07.2007, again there was a quarrel
between the accused and the deceased about shifting their abode to periyakulam
and at that time P.W.1, his brother Savarimuthu and his wife went to the accused
house and pacified them and returned to their house. On the same day, at about
7.30 p.m. in the night, P.W.3, Jeyamani, daughter of the spouses, came to the
house of P.w.1 and informed that there going a quarrel between their parents and
immediately P.W.1, his wife and his brother Savarimuthu rushed to the house of
accused. On seeing the brother of P.W.1, the accused claimed that because of
his conduct only his wife is refusing to come along with him to Periyakulam and
saying so the accused kicked him and Savarimuthu fell to ground and sustained
injuries on his elbow and knees. The accused also shouted at P.W.1 and went
inside the house and beat the deceased, for which the deceased replied “even if
I die, I will not come to Periyakulam and if you want to go, you go after
depositing the balance othi amount of Rs.8000/- in the name of children”.
Immediately, the accused took an Aruval (M.O.1) which was kept in the nearby box
and cut the deceased on her neck indiscriminately and the deceased Kanmani fell
on the mat which was lying on the floor. P.W.1 and others got frightened and
kept themselves away and the accused ran away towards north with the weapon of
crime. Thereafter, P.W.1 and his wife went near the deceased, lifted her and
found Kanmani dead. At the time of occurrence, the children of the accused were
also present. On hearing the noise, the neighbours also gathered there.
Immediately, P.W.1 rushed to the respondent Police Station and gave a complaint,
marked as Ex.P-1, to P.W.17, the Sub-Inspector of Police. P.W.17, based on
Ex.P-1 complaint, registered a case in Crime No.177/2007 under Section 302 IPC
and prepared Ex.P-15, the First Information Report, despatched the same to the
court and copies to the higher police officials for further action.
(d)On receipt of copy of Ex.P-15 FIR at 10.00 p.m. on
29.07.2007, P.W.18, the Inspector of Police, took up the investigation, rushed
to the scene of occurrence at 10.30 p.m., made an observation and prepared Ex.P-
2, the observation mahazar and also drew Ex.P-16, the rough sketch, in the
presence of P.W.9, the Village Administrative Officer and another. He conducted
inquest on the body of the deceased at 11.30 p.m. in the presence of
panchayatdars and witnesses and prepared Ex.P-17, the Inquest Report. He
enquired the witnesses and recorded their statements. He also caused the place
of occurrence to be photographed through P.W.10, the Photographer, and M.O.6
(series) are the photographs. P.W.18 recovered M.O.2, the Mat, M.O.3, the
Bloodstained Earth and M.O.4, the Sample Earth, from the place of occurrence
under Ex.P-4 Mahazar, attested by witnesses. Thereafter, he sent the body of
the deceased for postmortem through P.W.12, the Constable, with Ex.P-7, the
requisition.
(e)P.W.13, the Doctor attached to Government Hospital at
Uthamapalayam, conducted autopsy on the dead body of Kanmani @ Kannimariyal at
about 11.00 a.m. on 30.07.2007. On completion of postmortem, P.W.13 issued
Ex.P-8, the postmortem certificate, opining that the deceased would have died of
shock and hemorrhage due to multiple injuries sustained, 15 to 17 hours prior to
autopsy. After postmortem, P.W.12, the constable, recovered M.Os.7 to 14 from
the body of the deceased and handed over the same to P.W.18, the Investigation
Officer.
(f)P.W.14, another doctor attached to Uthamapalayam Government
Hospital, examined one Savarimuthu, who came to the hospital for treatment along
with police Memo. On examination, the injured told to P.W.14 that in an
occurrence that took place at about 6.30 p.m. on 29.07.2007 near his residence
he was kicked by a known person. P.W.14 found multiple abrasions over the right
forearm, a small abrasion over the right knee and a small abrasion over the left
knee and gave treatment to the injured. Ex.P-9 is the copy of the Accident
Register issued by P.W.14 to the said Savarimuthu.
(g)Pending investigation, P.W.18, the Inspector of Police,
arrested the accused on 30.07.2007 at 1.30 p.m. in the presence of P.W.9, the
Village Administrative Officer and another and recorded the voluntary
confessional statement given by him and pursuant to the admissible portion of
his confessional statement, marked as Ex.P-4, the accused took and produced
M.O.1, the Aruval and M.O.5, the bloodstained dhoti, and the same were recovered
by P.W.18 under Ex.P-5 mahazar attested by the same witnesses. Thereafter, the
accused was sent to judicial custody.
(h)On 06.08.2007, P.W.18 enquired P.W.13, the doctor who
conducted autopsy on the body of the deceased and recorded his statement. He
also examined P.W.14 and recorded his statement. P.W.18 gave Ex.P-11 requisition
to the court for subjecting the material objects recovered in the case for
chemical analysis, which resulted in two reports, namely Ex.P-13, the Chemical
Examiner’s Report and Ex.P-14, the Serologist’s Report. P.W.18 completed the
investigation on 08.10.2007 and filed the final report against the accused under
Sections 323 and 302 IPC.
3.After committal proceedings, the case was taken on file by
the Sessions Court in S.C.No.34/2008 and necessary charges were framed. To
prove the charges against the accused, the prosecution examined 18 witnesses as
P.Ws.1 to 18 and marked 17 documents as Exs.P-1 to P-17 and produced M.Os.1 to
14. On completion of the evidence on the side of the prosecution, when the
accused was questioned under Section 313 of the Criminal Procedure Code about
the incriminating circumstances found in the evidence of prosecution witnesses,
he denied all of them as false. On the side of defence, neither oral evidence
nor documental evidence was let it. The trial court, after hearing the parties,
took the view that the prosecution has proved the charges against accused beyond
reasonable doubt, found him guilty under both the charges, convicted him
thereunder and awarded punishments as referred to earlier and hence this appeal
at the instance of the appellant.
4.Advancing arguments on behalf of the appellants with all
vehemence, the learned counsel would submit that it is true that the prosecution
has examined P.Ws.1 to 3 as eye-witnesses to the occurrence but, all these
witnesses are close relatives of the deceased and apart from that, their
evidence is discrepant and hence the same should have been rejected by the trial
court. Learned counsel further submitted that the medical evidence, which was
projected by the prosecution through the postmortem doctor P.W.13, was not
consistent with the ocular testimony. Added further the counsel, the
prosecution examined P.W.14, the doctor, in respect of the injury said to have
sustained by one Savarimuthu but, the said said Savrimuthu was not examined and
under circumstances, even without the injured being examined, the trial court
has found the appellant/accused guilty under Section 323 IPC and awarded the
punishment which has got to be set aside.
5.Added further the learned counsel, the arrest of accused and
recovery of M.Os.1 and 5 from him, pursuant to the alleged confessional
statement given by him were nothing but cooked up evidence in order to
strengthen the prosecution case as it is thoroughly discrepant and therefore the
same should have been rejected by the trial court and thus the prosecution has
miserably failed to prove its case.
6.Learned counsel, advancing his second line of argument,
submitted that in the instant case the appellant/accused had justifiable reason
to take his wife to Periyakulam to live there as his brother died leaving behind
his wife and minor children and at the time of occurrence, when the
appellant/accused made a similar request the deceased replied that even if she
dies, she would not go over to periyakulam and this statement got provoked the
accused and even after this, there is evidence to show that the quarrel was
continuing between the accused and the deceased and only in that process the
appellant attacked the deceased and thus his act is neither intentional nor
there is any pre-meditation on the part of the appellant to do away his wife
and, under such circumstances, this legal position has got to be considered and
applied by this Court to the instant case.
7.The Court heard the learned Additional Public Prosecutor on
all the submissions made by the counsel for the appellant and paid its anxious
consideration to the submissions made on either side and perused the materials
on record.
8.It is not in controversy that one Kanmani @ Kannimariyal,
wife of the accused, was done to death in an incident that took place at 7.30
p.m. on 29.07.2007. Following the registration of a case, P.W.18, the Inspector
of Police, took up the investigation. After conducting inquest, the dead body
was subjected to postmortem by P.W.13, the Doctor, and after postmortem P.W.13
has issued Ex.P-8, the postmortem certificate, opining that the deceased died
due to shock and haemorrhage due to multiple injuries sustained. From the above
evidence, it is quite clear that Kanmani @ Kannimariyal died out of homicidal
violence. Apart from that, the fact that the deceased died out of homicidal
violence was never disputed by the appellant either before the trial Court or
before this Court and hence the trial judge was perfectly right in recording so.
9.In order to substantiate the charges levelled against the
appellant, the prosecution has marched P.Ws.1 to 3 eye-witnesses to the
occurrence. At the outset, it must be stated that though the prosecution has
examined P.W.14, the doctor, who gave treatment to one Savarimuthu, the said
Savarimuthu, who is stated have sustained injuries in the same occurrence when
the accused kicked him down, was not examined before the Court and in such
circumstances, the Court is of the opinion that so long as the injured
Savarimuthu was not examined, the judgment of conviction rendered by the trial
court under Section 323 IPC cannot be sustained and it has got to be set aside.
10.Insofar as the charge of murder under Section 302 IPC is
concerned, the Court is of the considered opinion that the prosecution had
projected ample evidence before the trial Court. P.Ws.1, 2 and 3 are eye-
witnesses to the occurrence. P.W.3 is the daughter of the spouses, aged about 9
years at the time of giving evidence. P.Ws.1 to 3 have, in one voice, stated
that immediately upon being informed by P.W.3 and on hearing the sound, they
rushed to the house nearby where the accused and the deceased were living and
they saw the quarrel that was going between the spouses and in that process the
accused cut indiscriminately on the neck of the deceased with an aruval and
caused her instantaneous death. Immediately thereafter P.W.1 has gone to the
place station and a complaint was given by him to P.W.17, the Sub-Inspector of
Police, following which a case was registered by P.W.17, the Sub-Inspector of
Police and the investigation was taken up by P.W.18, the Inspector of Police.
P.W.18 has conducted inquest, recovered material objects from the scene of
occurrence and subjected the dead body for postmortem. P.W.13, the doctor who
conducted autopsy on the body of the deceased, has categorically opined that the
deceased died due to the multiple injures sustained by her. This medical
opinion canvassed by the prosecution is in full corroboration with the ocular
testimony.
11.Yet another circumstance which was against the accused is
his arrest and recovery of M.O.1, the weapon of crime and M.O.5, the
bloodstained dhoti, following the voluntary confessional statement given by him.
The evidence of witnesses examined therefor by the prosecution remained unshaken
despite cross-examination in full. In such circumstances, the contention put-
forward by the counsel for the appellant in this regard attacking that part of
the evidence cannot be accepted by the Court and thus the prosecution has proved
that it was the accused who attacked the deceased with aruval on her neck
indiscriminately and caused her instantaneous death and the trial court is
fully justified in recording a finding to that effect and there is nothing to
disturb that part of the finding ny the trial court.
12.Insofar as the 2nd line of argument advanced by the learned
counsel for the appellant, the Court is able to see force in the contention put-
forth by the learned counsel. Even as per the evidence of P.Ws.1 to 3, who are
the eye-witnesses to the occurrence, the spouses were quarrelling with each
other on the issue of the accused demanding the deceased to go and stay at
Periyakulam from Kombai as there were justifiable reason to go over there and
live, to which course the deceased was not amenable. Further, on the date of
occurrence at about 6.30 p.m. there was a quarrel between the spouses and
P.Ws.1, 2, 4 and others pacified the spouses but the quarrel continued
thereafter and when P.W.3 came and informed to P.W.1 about the continued
quarrel, P.W.1 and P.W.2, along with P.W.3, went and saw the quarrel continuing
even at that point of time and when the request made by the accused was turned
down by the deceased saying ‘even if she dies, she would not go over to
Periyakulam’ and provoked by the same, the accused took M.O.1 aruval which was
kept in the nearby box, attacked her and caused her death instantaneously.
Under such circumstances, this act of the accused, as rightly put-forth by the
learned counsel for the appellant, is neither intentional nor premeditated. At
the same time, though it is not a case of murder, it is culpable homicide not
amounting to murder and the Court is of the considered opinion that the act of
the accused would attract the penal provision under Section 304(i) IPC and
awarding a punishment of 10 (ten) years rigorous imprisonment would meet the
ends of justice and accordingly, the judgment of the trial court finding the
accused guilty under Section 302 IPC and awarding the punishment of life
imprisonment thereunder requires modification.
13.In the result,
(a)the judgment of trial court in so far as convicting the appellant
under Section 323 IPC and sentencing him to undergo one year rigorous
imprisonment thereunder is set aside and he is acquitted of the said charge.
(b)Insofar as the judgment of the trial court convicting the
appellant under section 302 IPC and sentencing to undergo life imprisonment, the
same is set aside and instead the appellant/accused is convicted under Section
304(i) IPC and sentenced to undergo ten years rigorous imprisonment. The fine
amount imposed under Section 302 IPC, with default clause, by the trial court is
ordered to be treated as one imposed under Section 304(i) IPC. The period of
imprisonment already undergone by the appellant/accused is directed to be given
set-off under the modified sentence.
The criminal appeal is accordingly disposed of.
gb
To
1.The Principal Sessions Judge,
Theni District, Theni.
2.Additional Sessions Judge,
Fast Track Court,
Periyakulam, Theni District.
3.The Inspector of Police,
Kombai Police Station,
Theni District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.