BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08/02/2008
CORAM
THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM
and
THE HONOURABLE MR. JUSTICE S.PALANIVELU
Crl.A.(MD) No.219 of 2007
Ponnusamy .. Appellant
vs.
Inspector of Police,
Eriyodu,
Eriyodu Taluk,
Dindigul District.
(Crime No.309/2004). .. Respondent
Criminal Appeal filed under Section 374 Cr.P.C against the Judgment of
conviction and sentence dated 05.4.2007 made in S.C.No.19/2006 by the learned
Principal Sessions Judge, Dindigul.
!For appellant ... Mr.K.Thirumalai Raj,
Senior Counsel
for Mr.N.Shamuga Selvam
^For respondent ... Mr.P.N.Pandithurai
Addl.Public Prosecutor
:JUDGMENT
(Judgment of the Court was made
by M.CHOCKALINGAM,J)
Challenge is made to the judgment of Principal Sessions Division, Dindigul
dated 5.4.2007 made in S.C.No.19 of 2006 whereby the appellant/sole accused
stood charged, tried and found guilty under sections 302 IPC and 506 (2) of IPC
and awarded imprisonment for life and a fine of Rs.5,000/- with a default
sentence of 3 years rigorous imprisonment for the first charges; and three years
rigorous imprisonment and a fine of Rs.1,000/- with a default sentence of 9
months rigorous imprisonment for the second charge.
2. The short facts that are necessary for the disposal of this appeal can
be stated as follows:
(i) PW.1 is the daughter of the deceased. PW.2 is the husband of PW.1.
PW.3 is another daughter. The accused, in the instant case, is the younger
brother of the deceased. They were the residents of R.Kombaipatti. A few days
prior to the occurrence, the deceased sent his men to pick out groundnuts from
the field. The same was objected to by the accused. Since there was a dispute
between them over the land, the workers returned. They informed the same to the
deceased.
(ii) On 23.11.2004 at about 6.00 a.m., the deceased proceeded to the
field. He was followed by PW.1 and PW.2. They went near the field. They found
the deceased and the accused were quarrelling over their land dispute. At that
time, the accused took MO.1 aruval, attacked him on his head and also on
different parts of the body. Not satisfied with that, he took a towel and
strangulated him. As a result, the deceased Sankar died instantaneously.
Though PW.1 and PW.2 went nearby the occurrence, they were criminally
intimidated. The occurrence was witnessed by PW.1 and PW.2.
(iii) PW.1 and others went to the respondent police station where PW.11
was the Sub Inspector of Police on duty at 8.30 a.m., gave a report Ex.P.1. On
the strength of which, a case came to be registered in Crime No.309/2004 under
Sections 302 IPC. Printed F.I.R Ex.P.5 was sent to the Court and to the higher
officials.
(iv) On receipt of a copy of the F.I.R, PW.12, Inspector of Police,
attached to the respondent police station, took up investigation, proceeded to
the scene of occurrence, made an inspection in the presence of witnesses and
prepared an Observation Mahazer Ex.P.6 and also a rough sketch Ex.P.7. He
conducted inquest on the dead body of the deceased in the presence of
panchayatdars and prepared an Inquest Report Ex.P.8. He recovered the materials
objects available from the place of occurrence.
(v) The dead body of the deceased was subjected to post-mortem by PW.7,
attached to the Government Hospital, Dindigul and he found injuries as described
in the post-mortem certificate Ex.P.3 wherein he has opined that the deceased
would appear to have died due to head injury, about 10-12 hours prior to
autopsy.
(vi) Pending investigation, the accused was arrested on 24.11.2004.
During investigation, the accused gave a confessional statement and the
admissible part of that evidence was marked as Ex.P.9. Pursuant to the
confession, he produced an aruval MO.1 in the presence of witnesses and the same
was recovered under the cover of mahazer Ex.P.10.
(vii) All the material objects recovered from the place of occurrence and
from the dead body of the deceased were sent to Forensic Sciences Department for
chemical analysis, which resulted in two reports viz., Chemical Analysis Report
Ex.P.13 and Serological Report Ex.P.14.
(viii) On completion of the investigation, PW.12 filed a final report
against the accused/appellant as per the charges. The case was committed to the
Court of Sessions. Necessary charges were framed.
3. In order to substantiate the charges levelled against the accused, the
prosecution examined 12 witnesses and relied on 14 Exhibits and 9 MOs. On
completion of the evidence on the side of the prosecution, the accused was
questioned under Section 313 Cr.P.C. on the incriminating circumstances found in
the evidence of the prosecution witnesses, which was flatly denied on the part
of the accused. No defence witness was examined. The trial Court after hearing
the arguments advanced by either side and on considering the materials available
on record, took the view that the prosecution has proved its case beyond
reasonable doubts and found the accused/appellant guilty of the charges and
awarded punishments as referred to above. Aggrieved over the same, the accused
has brought forth this appeal before this Court.
4. Advancing his arguments on behalf of the appellant, Mr. K.Thirumalai
Raj, learned senior counsel appearing for the appellant, would submit as
follows:-
(i) In the instant case, the prosecution has only two eye-witnesses viz.,
PW.1 and PW.2. PW.1 was the daughter. PW.2 was the son-in-law of the deceased.
The deceased was actually in inimical terms with the accused since there was a
land dispute. Thus, PW.1 and PW.2 were not only interested in the deceased but
also inimical to the accused. Their evidence if scrutinised should have been
rejected by the trial Court.
(ii) Apart from that, their evidence is not only inconsistent to each
other but also self-contradictory. Under the circumstances, their evidence is
not worth mentioning to connect the accused with the crime.
(iii) The ocular testimony projected by PW.1 and PW.2 was never
corroborated with the medical evidence.
(iv) The arrest, confession and the alleged recovery were all cooked up
affairs in order to strengthen the prosecution case. Thus, the prosecution had
no evidence worth mentioning to offer.
(v) Even assuming that the prosecution has proved the fact that it was the
accused, who attacked the deceased and thereby caused death, it was neither
intentional nor deliberate because even as per the evidence of PW.1 and PW.2,
there was a quarrel and in the quarrel, the accused attacked with aruval.
However, injuries were found to be simple and actually, the occurrence had taken
place in the natural course. PW.7 Doctor has given his opinion that the injury
found on the skull was the bane for his death and that would be possible by
falling on the ground also, for which the accused cannot be found guilty.
(vi) Even though if the act of the accused found to be proved, it would
only attract the penal provision of Section 324 of IPC. Accordingly, this legal
aspect has got to be considered by this Court.
5. The Court heard the learned Additional Public Prosecutor on the above
contentions.
6. The Court paid its utmost attention to the submissions and made a
thorough scrutiny on the entire materials available on record.
7. It is not a fact in controversy that one Sankar, the father of PW.1 was
died out of homicidal violence in the occurrence that took place on 23.11.2004.
Following the inquest made by the investigator, the dead body of the deceased
was subjected to post-mortem by Doctor PW.7, who has given his opinion in Ex.P.3
post-mortem certificate that the deceased died out of head injury, about 10 –
12 hours prior to autopsy. The fact that the deceased died out of homicidal
violence was never questioned by the appellant at any stage of the proceedings.
Hence, it has got to be recorded factually so.
8. In order to substantiate the fact that it was the accused/appellant who
attacked him and caused his death, the prosecution has marched two witnesses. It
is true, PW.1 is the daughter and PW.2 is the son-in-law of the deceased. It is
the well settled position of law that merely on the ground of relationship of
the witnesses, their evidence cannot be discarded. In the instant case, PW.1 and
PW.2 have clearly spoken in one voice that when they were nearing the deceased,
actually, there was a quarrel between the deceased and the accused, in which,
the accused took an aruval and attacked the deceased on the head and not-
satisfied with that, he took a towel and pressed his neck and the deceased died
instantaneously. When PW.1 and PW.2 tried to rescue him, they were criminally
intimidated. The ocular testimony stood fully corroborated by the evidence of
PW.7 who opined that injury No.5 found on the skull was the reason for the
death. The evidence of PW.1 and PW.2 inspires the confidence of the Court.
Hence, the contention put-forth by the learned counsel for the appellant that
merely falling on the ground, such an injury could be inflicted and that other
injuries were simple and the death had not been brought out by the act of the
accused cannot be countenanced.
9. Yet another circumstance is the recovery of weapon of the crime from
the accused pursuant to his confession, which was recorded by the investigator
in the presence of two witnesses. That part of evidence remains unshaken
despite the cross-examination. The lower Court has thoroughly accepted that
part of evidence.
10. All these would go to show that the prosecution has proved the fact
that it was none but the accused who attacked his brother and caused his death.
11. Coming to the second line of contention that even assuming that the
prosecution has proved the case, the act of the accused would not attract the
penal provision of murder, the Court is able to see some force in the contention
put-forth by the learned counsel for the appellant though not in full.
12. The accused had attacked the deceased with an aruval and injury No.5
was actually caused by him. It is evident from the ocular testimony, which
stood fully corroborated by the medical evidence. At this juncture, it is
pertinent to point out that, actually, there was a wordy altercation between the
brothers in respect of land dispute which fact has been spoken to by the two
witnesses viz., PW.1 and PW.2. It would be quite clear that this wordy
altercation caused sudden provocation in attacking the deceased with an aruval
and causing his death. However, the contention put-forth by the learned counsel
for the appellant that the act would attract only Section 324 IPC can not be
accepted. However, the Court is of the considered opinion that it will be
appropriate to convict the appellant under Section 304 (Part – II) of IPC and
awarding 5 years of rigorous imprisonment would meet the ends of justice.
Accordingly, the conviction and sentence under Section 302 and 506 (2) of IPC
are set aside. Instead, the appellant/accused is convicted under Section 304
(Part II) of IPC and awarded five years rigorous imprisonment. Fine amount, if
any, was already paid by the appellant under section 302 IPC, the same shall be
refunded to the appellant. The conviction and sentence under Section 506(2)
IPC are confirmed. The sentences are to run concurrently. The period of sentence
already undergone by the appellant shall be given set off. The Criminal Appeal
is disposed of accordingly.
asvm
To
1.The Principal Sessions Judge,
Dindigul.
2.Inspector of Police,
Eriyodu,
Eriyodu Taluk,
Dindigul District.
(Crime No.309/2004).
3.The Additional Public Prosecutor,
Madurai Bench of
the Madras High Court,
Madurai.