IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23/07/2003
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.501 of 2001
Subramanian @ Subban .. Appellant
-Vs-
State rep. by:
The Inspector of Police
Poolampatti Police Station
Salem District
Cr.No.233 of 1999 .. Respondent
This criminal appeal is preferred under Sec.374(2) of The Code of
Criminal Procedure against the judgment of the III Additional Sessions Judge,
Salem, made in S.C.No.339 of 1999 and dated 7.11.2000.
!For Appellant : Mr. S.N.Thangaraj
^For Respondent : Mr.O.Srinath
Government Advocate (Crl. Side)
:JUDGMENT
The sole accused in a case of murder who stood charged and tried under
Ss 302 and 324 of the Indian Penal Code, has brought forth this appeal,
challenging the conviction under Ss 304(i) and 324 of I.P.C. and sentence of
10 years R.I. and fine of Rs.3,000/- in default, 6 months R.I. under
Sec.304(i) of IPC and 1 year R.I. and fine of Rs.2,000/- in default, 3 months
R.I. under Sec.324 of IPC.
2. The short facts necessary for the disposal of the appeal can be
stated thus:
(a) The appellant/accused and the deceased Madesh were close relatives
and also residing in the adjacent houses in Molaparai Perumal Nagar,
Poolampatti Village, Edapadi Taluk. P.W.1 Palaniammal is the wife of the
deceased, while P.W.2 Lakshmi is the mother-in-law. There was a long standing
enmity between the parties over a common passage which was situate in between
the houses. On the date of incident namely 24.3.1999 at about 11.00 A.M., the
deceased Madesh was returning to his house, after taking batch in the Cauvery
River. Near the house of one Rajamani, the wife of the accused namely
Rajammal scolded the deceased in sarcastic language. Hence, the deceased
pushed her down. On seeing this, the appellant/accused came to the place of
occurrence with M.O.1 billhook, attacked the deceased on the left side neck
and caused his instantaneous death. When P.W.1, the wife of the deceased,
intervened, she was also attacked on both hands by the appellant, and simple
injuries were caused to her. The said incident was witnessed by P.W.3
Pushpamary and P.W.4 Raju. P.W.1 accompanied by P.W.4 rushed to Poolampatti
Police Station and gave a complaint under Ex.P1 . On the strength of Ex.P1,
P.W.11 Duraisamy, Head Constable, registered a case at 1.30 P.M. in Crime
No.233/99 under Ss 302 and 324 of IPC. Ex.P14 printed F.I.R. was despatched
to the concerned Judicial Magistrate’s Court, while the copies of the same
were sent to the higher officials. P.W.1 was sent to the Government Hospital,
Edapadi with the medical memo. P.W.7 Dr.Kothandaraman examined P.W.1 at about
6 .00 P.M. and issued Ex.P6 accident register.
(b) P.W.12 Karunakaran, Inspector of Police, on receipt of the copy of
the F.I.R. took up the investigation, proceeded to the occurrence place, made
an inspection and prepared Ex.P2 observation mahazar in the presence of P.W.5
Seerangan, Village Administrative Officer and other witness and Ex.P15 rough
sketch. Then, P.W.12 conducted the inquest on the dead body of Madesh in
front of the panchayatars and witnesses and prepared Ex.P16 inquest report.
He examined P.Ws.2 and 3 and other witnesses and recorded their statements.
He made a request under Ex.P7 to P.W.8 Dr.Sundararajan through P.W.9
Shanmugam, Constable for conducting the postmortem. Accordingly, P.W.8 Doctor
conducted the autopsy on the dead body of Madesh on 25.3.99 at 8.30 A.M. and
issued Ex.P8 postmortem certificate, wherein he has narrated the injuries as
follows.
External Injuries:
1. A lacerated wound on the right forearm 6 cm x 3 cm muscle deep.
2. A cut injury on the left forearm, semicircle in shape with reversion of
the skin exposing the muscles and bone.
3. A cut injury on the left side of the neck 12 cm x 5 cm, deep upto the
cervical vertebra C6 exposing the spinal cord which is lacerated. All the
major neck blood vessels on the left side have been cut.
The Doctor has opined that the deceased would appear to have died of shock and
haemorrhage and injury to cervical spinal card and to major neck blood vessels
on the left side.
(c) P.W.12 Investigating Officer recovered M.O.2 bloodstained lungi,
M.O.3 bloodstained earth and M.O.7 sample earth under Ex.P3 mahazar in front
of P.W.5 V.A.O. and other witness. At about 7.15 P.M., P.W.12 arrested the
accused and recorded the co sional statement made by him voluntarily. The
admissible portion of the confessional statement is marked as Ex.P4. Pursuant
to the confession, M.O.1 billhook was recovered under Ex.P5 mahazar in front
of P.W.5 V.A.O. and other witness. P.W.12 recorded their statements. The
appellant/accused was sent for judicial custody. On 25.3.99, P.W.12 proceeded
to the Government Hospital, Edapadi and examined P.Ws.1, 4, 6, 9 and 11 and
recorded their statements. P.W.8 Doctor was also examined, and his statement
was recorded. P.W.12 produced all the material objects before the concerned
Magistrate’s Court and made a request for sending them for chemical analysis.
Accordingly they were sent. On completion of the analysis, the chemical
analyst’s reports and the serologist’s report were received, which were marked
as Exs.P11 to P13 respectively through P.W.10 Dhandapani, Head Clerk, attached
to the Court of the Judicial Magistrate No.II, Sangagiri. On completion of
the investigation, a charge sheet was filed against the appellant/accused
under Ss 302 and 324 of I.P.C.
3. In order to prove the charges levelled against the appellant/
accused, the prosecution examined 12 witnesses and marked 16 exhibits and 7
material objects. After the completion of the evidence of the prosecution,
the accused was questioned under Sec.313 of Cr.P.C. in respect of the
incriminating circumstances found in the evidence of the prosecution
witnesses, which were denied by him as false. The wife of the
appellant/accused was examined as D.W.1. She has stated that at the time of
occurrence, she was not only pushed down, but the deceased attempted to
outrage her modesty and under such circumstances, they went over to the Police
Station and lodged a complaint, but it was not enquired into, and instead a
false case has been foisted against the accused. On consideration of the
rival submissions made and scrutiny of the materials available, the trial
Court found the accused guilty under Ss 304(i) and 324 of I.P.C. and has
awarded the punishment as referred to above. Hence this appeal by the
aggrieved appellant/accused.
4. Arguing for the appellant/accused, the learned Counsel would
submit that the lower Court without proper consideration of the evidence, has
convicted the accused; that it is pertinent to note that there are vital
contradictions in the evidence of P.Ws.1 and 2; that they are interested
witnesses; that a perusal of the accident register would show that two persons
committed the alleged offence, but the appellant alone has been arrayed as
accused; that the lower Court has not considered the defence put forth by the
accused; that it has to be noted that before lodging the complaint under
Ex.P1, the accused and his wife have lodged a complaint against the deceased
for the acts done by him; that the complaint given by the accused and his wife
has been totally suppressed by the prosecution, since it was against the
prosecution case; that this aspect of the matter would clearly show that the
case was totally cooked-up; that there is undue delay in lodging the F.I.R,
which would create a doubt on the entire prosecution case; that the medical
evidence has not corroborated the prosecution case, and hence, the judgment of
the lower Court has got to be set aside and the appellant/accused be acquitted
of the charges against him.
5. Countering to the above contentions of the appellant’s side, the
learned Government Advocate (Criminal Side) would argue that the lower Court
has thoroughly analysed the entire evidence and has come to the conclusion
that the accused was guilty of the charges against him; that because of the
fact that P.Ws.1 and 2 are relatives, their evidence cannot be rejected, since
their evidence is cogent and acceptable; that there is no delay in lodging the
F.I.R.; that the medical evidence has fully corroborated the ocular evidence;
that the lower Court has correct found the appellant/accused guilty under Ss
304(i) and 324 of I.P.C., and there is nothing to interfere in the judgment of
the lower Court, and hence, the judgment of the lower Court has got to be
sustained.
6. A careful consideration of the rival submissions and thorough
appraisement of the available materials would lead to the irresistible
conclusion that there is no substance in this appeal.
7. The gist of the prosecution case was that on 24.3.99 at about
11.00 A.M., when the deceased Madesh, the husband of P.W.1 was returning to
his house after taking bath in Cauvery River, and when he was crossing the
house of one Rajamani, D.W.1 Rajammal, the wife of the accused abused him, and
hence he pushed her down, and seeing this, the accused armed with M.O.1.
billhook attacked him on both hands and left side neck of the deceased and
caused instantaneous death. At the outset it has got to be pointed out that
at the time of Sec.313 Cr.P.C. questioning, the appellant/accused has
categorically admitted that it was he who attacked the deceased with the
weapon and caused his death. The incident has been clearly spoken to not only
by P.W.1, the injured witness, who came to the rescue of the husband at the
time of attack by the accused and who also sustained injuries, but also by the
other witnesses, who were present namely P.Ws.3 and 4. It is true that the
witnesses examined on the side of the prosecution namely P. Ws.1 and 2 are
close relatives. But, the Court cannot reject their testimonies solely on
that ground. It has to exercise careful scrutiny over them. The evidence of
those witnesses, if scrutinised carefully, inspires the confidence of the
Court, because it is cogent and acceptable. That apart, as pointed out
already, the presence of the accused at the time and place of occurrence and
the attack on the deceased by a weapon are well admitted by him at the time of
questioning under Sec.313 of Cr.P.C. It is pertinent to point out that D.W.1,
the wife of the accused has also admitted the same.
8. What was contended by the defence before the Court below and
equally here also was that at the time of occurrence, the deceased Madesh not
only pushed D.W.1 down, but attempted to outrage her modesty by pulling her
saree and jacket; that enraged over the same and due to sudden provocation,
the accused acted in such a manner thereby causing injuries; that by way of
self defence, he is entitled to do so, and hence, the defence put forth by him
has to be accepted. This theory of self defence was rejected by the lower
Court and rightly too. The wife of the accused, examined as D.W.1 has
categorically admitted in her cross examination that it was for the first time
she placed the whole story before the trial Court. Hence, the contention of
the appellant’s side that immediately after the occurrence, the appellant/
accused and D.W.1 had gone to the Police Station and gave a complaint, but it
was not considered and no enquiry was made has got to be rejected. 9. At
the time of investigation, the Investigating Officer conducted the inquest on
the dead body of Madesh, prepared an inquest report and sent the dead body for
autopsy. P.W.8 Doctor attached to the Government Hospital, Edapadi conducted
autopsy on the dead body of Madesh. The Doctor has narrated the injuries
found and has opined that the death would have been caused due to shock and
haemorrhage and injury to cervical spinal card and to major neck blood vessels
on the left side. This part of the medical evidence stands a good piece of
corroboration to the ocular testimony through P.W.1 and other witnesses. The
evidence as to the chemical analysis reports and the recovery of M.O.1
pursuant to the confessional statement made by the accused voluntarily had
been placed in the hands of the trial Court. Thus, the evidence as narrated
above would be suffice to find the accused guilty that it was he who caused
the instantaneous death of the said Madesh by attacking him with M.O.1 weapon
of murder at the time and place of occurrence. At the time of occurrence,
when P.W.1 intervened to save her husband, she was also attacked by the
appellant, and the accused caused simple injuries to her. She was also
examined medically and certificate has also been brought forth, wherein
injuries have been narrated, and thus, the charge under Sec.324 of I.P.C. has
also been proved.
10. Under the stated circumstances, the lower Court was perfectly
correct in recording a conviction not under Sec.302 of I.P.C., but under
Sec.304(i) of I.P.C. in view of the fact that at the time of occurrence,
there was a huge quarrel, and following the same. the accused has acted in
such a manner, and further at the time of occurrence, it should have been well
within the knowledge of the accused that the assault on the neck of the
deceased with M.O.1 deadly weapon would cause instantaneous death. The lower
Court is also right in finding the appellant/accused guilty under Sec.324 of
I.P.C. There is nothing to interfere in the conviction passed by the lower
Court.
11. Coming to the question of sentence, the lower Court has awarded
10 years R.I. to the appellant/accused under Sec.304(i) of I.P.C. along with
fine. Taking into consideration the facts and circumstances of the case, the
Court is of the considered view that the reduction of the sentence from 10
years R.I. to 7 years R.I. would meet the ends of justice. In other
respects, the sentences awarded by the lower Court has got to be confirmed.
12. In the result, the sentence of 10 years R.I. imposed by the
lower Court on the appellant/accused under Sec.304(i) of I.P.C. alone is
modified, and the appellant/accused shall undergo 7 years R.I. under
Sec.304(i) I.P.C. In other respects, the judgment of the lower Court is
confirmed. With the above modification, this criminal appeal is dismissed.
Index: Yes
Internet: Yes
To:
1) The Judicial Magistrate No.I, Sangagiri.
2) The Judicial Magistrate No.I, Sangagiri,
Thro’ The Chief Judicial Magistrate, Salem.
3) The III Additional Sessions Judge, Salem.
4) The III Additional Sessions Judge, Salem,
Thro’ The Principal Sessions Judge, Salem.
5) The Superintendent, Central Prison, Coimbatore.
6) The Public Prosecutor, High Court, Madras.
7) The D.I.G. of Police, Chennai 4.
8) Mr.O.Srinath, Government Advocate (Crl. Side),
High Court, Madras.
9) The Inspector of Police, Poolampatti Police Station,
Salem.
10)The Inspector of Police, Coimbatore Race Course
Police Station.
nsv/