BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/01/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.A.NO.531 of 2006 Pandi alias Athilpandi .. Appellant Vs. The State represented by the Inspector of Police, Valanthur Police Station, Madurai District. (Crime No.82/2005) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the conviction and sentence of life imprisonment imposed on the appellant by the learned Principal Sessions Judge, Madurai made in S.C.No.82 of 2005, dated 24.03.2005. !For Appellant ... Mr.C.Rajakumar ^For Respondent ... Mr.P.N.Pandithurai, APP :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
Challenge is made to the Judgment of the learned Principal Sessions Judge,
Madurai made in S.C.No.82 of 2005, whereby the sole accused/appellant stood
charged, tried and found guilty as per the charge under Section 302 IPC and
awarded life imprisonment along with fine of Rs.1,000/- with default sentence.
2. The short facts necessary for the disposal of this appeal could be
stated thus:-
a)P.W.1 is the son and P.W.2 is the grandson of the deceased, aged 75
years. The deceased had 2 wives. The accused is the son-in-law through the
daughter of the deceased by name Uma. The deceased had disturbance in
matrimony. Though in a Village Panchayat, a customary divorce was given, all of
them were living together under the same roof. There were occasions in which
the accused used to demand money from his father-in-law and quarrel with him.
On the date of occurrence, ie., on 27.06.2004 at noon hours, P.Ws.1 to 4 were
all present in the house along with the deceased. The accused came over there
and demanded money. The deceased replied that the entire money was given to his
daughter Uma when she went to Madurai to attend a function. Immediately, the
accused asked for the key of the bureau. The deceased also replied that the key
is also with Uma, following which there was a wordy altercation between the
accused and the deceased. Immediately, the accused went inside the house, took
an Aruval and attacked him on his neck. The deceased had an instantaneous
death. The occurrence was witnessed by P.Ws.1 to 4.
b)Immediately, P.W.1 proceeded to the respondent police station and gave a
complaint Ex.P.1 to P.W.12 Sub Inspector of Police. On the strength of the same,
a case came to be registered by him in Crime No.71 of 2004 under Sections 302,
342 and 506(ii) IPC. Ex.P.7, the FIR, was sent to the concerned Judicial
Magistrate Court through a Constable along with Ex.P.1.
c)On receipt of the copy of the FIR, P.W.13, the Inspector of Police, took
up the investigation, proceeded to the scene of occurrence and made an
inspection in the presence of two witnesses and prepared Ex.P.2, the Observation
mahazar and Ex.P.8, the rough sketch. Further, he recorded the statement of the
witnesses. He also recovered MOs viz., blood stained sample earth etc. He
conducted inquest on the dead body of the deceased in the presence of the
witnesses and panchayatdars and prepared Ex.P.9, the inquest report.
d)The dead body of the deceased was sent to the hospital, for the purpose
of autopsy. P.W.9, the Doctor, attached to the Usilampatti Government Hospital,
on receipt of the requisition, has conducted autopsy on the dead body of the
deceased and has issued Ex.P.4, the post-mortem certificate, wherein she opined
that the deceased would appear to have died of shock and haemorrhage due to the
injuries sustained by him.
e)The Investigator came to know that the accused surrendered before the
Judicial Magistrate No.II, Viruthunagar. He made an application for police
custody. Accordingly, it was ordered. Thereafter, he interrogated with the
accused, who made a confessional statement, and the same was recorded, the
admissible part of which was marked as Ex.P.5. Consequent upon the same, he
produced M.O.1, Aruval, which was recovered in the presence of the witnesses
under a cover of mahazar.
f) The accused was sent for judicial remand and all the material objects
recovered from the place of occurrence, from the dead body of the deceased and
also from the accused M.O.1 Aruval were sent for chemical analysis pursuant to a
requisition given by the Investigating Officer to the concerned Judicial
Magistrate. Ex.P.10, the Chemical analyst’s report and Ex.P.11, the Serologist’s
report were received. On completion of the investigation, the Investigating
Officer has filed the final report before the concerned court, which in turn has
committed the case to the court of sessions and necessary charges were framed
and the case was taken up for trial.
g) In order to substantiate the charges, at the time of trial, the
prosecution examined 13 witnesses and also marked 11 exhibits and 7 M.Os. On
completion of the evidence on the side of the prosecution, the accused was
questioned under Section 313 Cr.P.C. as to the incriminating circumstances found
in the evidence of prosecution witnesses. He denied them as false. No defence
witness was examined. The lower court, after hearing the arguments of the
counsel and also considering the materials available, took the view that the
prosecution has proved the case beyond reasonable doubt and found the accused
guilty under Section 302 IPC and awarded life imprisonment. Under these
circumstances, this criminal appeal has arisen before this court at the instance
of the accused appellant.
3. The learned counsel advancing arguments on behalf of the appellant
inter-alia has made the following submissions:- The occurrence had taken place
on 26.07.2004 at about 12.30 pm. The prosecution wanted to project the case
through 4 witnesses, out of whom P.Ws.3 and 4 have turned hostile. P.W.2,
though he has categorically submitted that he did not know anything about the
occurrence, prosecution did not come forward to treat him hostile. But his
evidence was worthless and hence the only evidence available was that of P.W.1.
P.W.1 is none else than the son of the deceased and therefore, he is an
interested witness. Since he is the son of the deceased, the test of careful
scrutiny has got to be applied and if applied, his evidence could not be
believed. Under such circumstances, the uncorroborated testimony should not
have been accepted by the lower Court.
4. The learned counsel would further add that in the instant case, the
medical opinion was not in support of the prosecution and further in the instant
case, the alleged arrest, confession and recovery made during the police custody
after the judicial remand cannot be believed and hence the lower Court should
have rejected the prosecution case outright.
5. Advancing the further argument, learned counsel would submit that even
assuming the factual position of the prosecution case is proved, the proved
facts would not attract the penal provision of murder. In the instant case,
even as per the materials available, in particular the FIR, it would be quite
clear that there was a wordy altercation between the accused and the deceased
immediately before the occurrence and in view of the quarrel, the accused
suddenly being provoked, went inside the house, took an Aruval and cut him only
once and therefore, he has not attacked the deceased with an intention to cause
his death, but only due to sudden provocation, he attacked the deceased and
hence it is not a case of murder, but culpable homicide not amounting to murder.
6.The court heard the learned Additional Public Prosecutor on the above
contentions.
7.The court has paid its anxious consideration on the submissions made and
also scrutinized the materials available.
8. It is not in controversy that one Muthupeyandi Thevar, father of P.W.1
was done to death in an occurrence that took place at about 12.00 noon on the
date of occurrence viz., 27.06.2004, following which an inquest was made by the
Investigating Officer. The dead body was subjected to Post-Mortem. P.W.9, the
Doctor, who conducted Post Mortem has given an opinion that the deceased would
appear to have died out of shock and hemorrhage due to the injuries sustained by
him. The fact that the deceased died out of homicidal violence was never
questioned by the accused at any point of time and hence it has got to be
recorded so.
9. Though the prosecution projected its case through 4 eyewitnesses viz.,
P.Ws.1 to 4, P.Ws.3 and 4 have turned hostile. P.W.2 has categorically
admitted that he did not know anything about the occurrence and thus the only
evidence available is P.W.1. It is a well settled position of law that merely
because the witness happened to be the son of the deceased, his evidence need
not be discarded. But, before accepting the evidence, the Court must exercise
the test of careful scrutiny. If the test is applied to the evidence of P.W.1,
it has got to be accepted since it is convincing and it inspires the confidence
of the Court. As rightly pointed out by the Court below in the instant case,
his evidence is fully corroborated by the medical evidence. In the instant
case, yet another instance, in the opinion of the Court, is the recovery of
M.O.1, weapon of crime and the confession of the accused while in police
custody; that the witness has been examined to that effect. Apart from that the
evidence as to the confession and recovery remain unshaken and hence it would
clearly indicate the nexus of the accused with the crime. When all these put
together, the Court has to necessary accept that part of the case of the
prosecution that it was the accused who attacked the deceased and caused his
death. Now in the face of the evidence available, the Court is unable to see
any merit in the contention put forth by the learned counsel for the appellant
in those respects.
10. Now coming to the question as to the nature of the act of the
accused, the Court has to necessarily agree with the material facts that on the
date of occurrence, all these P.Ws.1 to 4 along with the deceased were actually
in the house; that at that time, the accused came over there; that he is none
else than the son-in-law of the deceased; that he made a demand for money; that
his father-in-law, the deceased gave a denial answer that he did not have money
at all and thereafter the accused was asking for the key of the bureau, to which
also he denied stating that it was with his daughter; that even from the FIR, it
could be seen that there was a wordy altercation between the son-in-law and
father-in-law and in such circumstances, he got provoked and then the accused
cut the deceased with Aruval and attacked him and in such circumstances, he had
no intention of causing murder, but there was a wordy quarrel, following which
there was a provocation, due to which, the incident had occurred. In such
circumstances, the act of the accused cannot be termed as murder, but it would
be a culpable homicide not amounting to murder. In such circumstances, the
Court is of the opinion that the act of the accused would attract the penal
provision of Section 304(i) of IPC and awarding punishment of 7 years would meet
the ends of justice.
11.In the result, the conviction and sentence imposed on the appellant are
modified and instead the appellant is convicted under Section 304 (i) IPC and is
sentenced to undergo seven years R.I. The sentence already undergone by the
appellant, is ordered to be given set off. The fine amount imposed by the
trial Court under Section 302 IPC shall be treated as fine amount under Section
304(i) IPC. With the above modification in conviction and sentence, this
criminal appeal is dismissed.
rg
To
1.The Additional District Judge,
Fast Track Court No.I, Tirunelveli.
2.Inspector of Police,
Palayamkottai Police Station,
Tirunelveli District.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.