IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18-12-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.579 of 2009 Vasantha Kumar .. Appellant vs State: rep. By Inspector of Police Avadi Tank Factory Police Station Chennai 600 054. (Crime No.136/2008) .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Thiruvallur, made in S.C.No.181 of 2008 dated 10.9.2009. For Appellant : Mr.S.Swamidoss Manokaran For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
Challenge is made to a judgment of the Sessions Division, Thiruvallur, made in S.C.No.181 of 2008 whereby the sole accused/appellant stood charged under Sec.302 of IPC, tried, found guilty of murder and awarded life imprisonment along with a fine of Rs.1000/- and default sentence.
2.Short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the Ward Councilor of Avadi Municipality. The accused was residing with his old grandmother namely the deceased Radhammal, in her eighties. On 10.2.2008, P.W.1 residing nearby, came to know that the grandmother of the accused died. When he went over there and made an enquiry, the accused came forward to give a confessional statement voluntarily stating that he pushed her down, and she sustained injuries as a result of which she succumbed to the same. The statement made by the appellant/accused was recorded by P.W.1, and the same is Ex.P1. Along with the accused, P.W.1 proceeded to the respondent police station and produced the accused at about 2200 hours before P.W.7, the Inspector of Police of the Circle, and also produced Ex.P1. On the strength of Ex.P1, P.W.7 registered a case in Crime No.136 of 2008 under Sec.302 of IPC. The printed FIR, Ex.P9, was despatched to the Court. Then P.W.7 took up investigation. He actually arrested the accused in the presence of witnesses. He came forward to give a confessional statement, which was recorded. The admissible part of the confessional statement is marked as Ex.P5.
(b) The Investigator proceeded to the place of occurrence, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch. He recovered M.O.3, bloodstained mat, M.O.4, bloodstained cement floor piece, and M.O.5, sample cement floor piece, under a cover of mahazar. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P12. The dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy.
(c) Pursuant to the said requisition made by the Investigator, P.W.6, the Tutor, Department of Forensic Medicine, Government Kilpauk Medical College, Chennai, conducted autopsy on the dead body of Radhammal and has issued a postmortem certificate, Ex.P6, with his opinion that the deceased would appear to have died of head injury.
(d) Pursuant to the confessional statement, the accused produced M.O.1, knife, and M.O.2, wooden-log, in the presence of witnesses, and they were also recovered under a cover of mahazar. He was sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Sciences Department pursuant to the requisition made by the Investigator through the concerned Court which brought forth two reports namely Ex.P7, chemical analyst’s report, and Ex.P8, the serologist’s report. On completion of investigation, the Investigator filed the final report.
3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution marched 7 witnesses and also relied on 12 exhibits and 7 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty and awarded life imprisonment. Hence this appeal at the instance of the appellant.
4.Advancing arguments on behalf of the appellant, the learned Counsel Mr.S.Swamidoss Manokaran would submit that the occurrence, according to the prosecution, has taken place in the night hours of 9.2.2008; that the prosecution had no direct evidence to offer as an eyewitness; that the prosecution mainly relied on Ex.P1, the extra-judicial confession, alleged to have been given by the appellant to P.W.1, the Ward Councilor; that P.W.1 has categorically admitted that Ex.P1 was not written by him, and thus it would be quite clear that only after he was taken to the police station, the document has been prepared to suit the prosecution case.
5.Added further the learned Counsel that in the instant case, M.Os.1 and 2, according to the Investigator, were recovered consequent upon the confessional statement given by the accused and recorded in the presence of the witnesses; that M.O.1 is a knife and M.O.2 is a wooden-log; that according to the prosecution, these weapons were actually used by the accused for causing injuries to her; but, when the postmortem certificate, Ex.P6, is looked into, it would indicate that the injuries could not have been caused with these weapons; that in such circumstances, the prosecution had neither direct evidence nor circumstantial evidence and thus it has miserably failed.
6.The learned Counsel would further contend that the alleged confessional statement to the Police Officer and also the recovery of M.Os.1 and 2 were all cooked up in order to strengthen the prosecution case; but, it was a vainful attempt made by the prosecution; that a false case has been foisted against the appellant/accused since the Investigator could not fix the accused at all; that under the circumstances, the prosecution has miserably failed to prove its case since it had no direct evidence to offer;; that the trial Court has taken an erroneous view, and hence he is entitled for acquittal in the hands of this Court.
7.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
8.It is not in controversy that in an incident that had taken place on the early hours of 10.2.2008, the grandmother of the appellant Radhammal died. Following the inquest made by the Investigator, P.W.7, the dead body was subjected to postmortem by P.W.6, the Medical Person, who has given a categorical opinion as a witness before the Court and also through the contents of the postmortem certificate, Ex.P6, that she died due to the head head injury sustained by her. Now, the available materials would clearly indicate that it was a homicidal death. Hence it has got to be recorded so.
9.In order to substantiate that it was the accused who caused the death of his grandmother, who was 80 years old, the prosecution had no direct evidence to offer. But the prosecution rested its entire case on the circumstantial evidence. This Court is mindful of the caution made by the settled principles of law and also the law laid down by the Supreme Court that in a given case like this where the prosecution rested its case exclusively on the circumstantial evidence, it must place and prove the necessary circumstances which should constitute a chain without a snap and also be pointing to the hypothesis that except the accused, no one could have committed the offence. On application of this settled principle of law, this Court is satisfied that the prosecution has proved the case by placing necessary circumstances and proved them also.
10.In the case on hand, the first circumstance which would pass in anybody’s mind was that it was the accused who was the only person staying with that old lady on that night. There is no contra evidence available in the entire materials. The death has been caused on the night of 9.2.2008, and injuries were also found on the dead body. The postmortem Doctor, P.W.6, has pointed out that the head injury that was caused was the reason for death. That apart, number of injuries were also noticed as found in the postmortem certificate. In such circumstances, it is for the accused to explain how she sustained those injuries which were fatal. Now, the prosecution had placed the evidence of P.W.1. According to P.W.1, he is a Ward Councilor, and on coming to know about the death of the old lady, he came to her house, and the accused immediately stated to him that he pushed her down, and she sustained injuries and succumbed to the same, and Ex.P1, the extra-judicial confession, was recorded, and the same was produced before the police along with the accused. On the strength of Ex.P1, a case came to be registered by P.W.7, the Inspector of Police, within a short span of time, and then he was also arrested. As far as the extra-judicial confession, Ex.P1, was concerned, the learned Counsel brought to the notice of the Court that it was not recorded by P.W.1. But, P.W.1 has categorically stated that it was recorded in his presence. Apart from that, it is not necessary that it should be recorded by him. When Ex.P1 was made by the accused to him, wherein P.W.1 has also signed and he also gave evidence before the Court, all would go to show that the document has got to be given sufficient weight.
11.Apart from the above, after he was produced before the police station, on arrest he came forward to give a confessional statement, and the same was recorded, pursuant to which he also produced M.O.1, knife, and M.O.2, wooden-log. Now the external injuries that are noticed in the postmortem certificate would indicate that those injuries could have been caused by M.O.1, knife, and M.O.2, wooden-log. At this juncture, it is pertinent to point out that the recovery of these weapons of crime on production by the accused pursuant to the confessional statement voluntarily made, would be indicative of the nexus of the accused with the crime.
12.Added circumstance is the scientific evidence. All these material objects were subjected to chemical analysis, and the blood group found in the clothes of the lady and also in M.O.2, wooden-log, was found tallying. Thus it is also in favour of the prosecution. When the injuries are found which would have been caused by M.Os.1 and 2, and also he had no explanation to offer how those injuries were caused when he was alone staying with her, all would indicate that except the accused no one could have caused such injuries which led to her death. Under the circumstances, the contentions put forth by the learned Counsel for the appellant do not carry any merit whatsoever, and they are liable to be rejected, and accordingly rejected.
13.As regards the act of the accused, after going through the materials available, this Court is of the considered opinion that it would not attract the penal provision of murder. The evidence of P.W.2 was to the effect that there was a quarrel as to the property dispute between the appellant and the grandmother on the evening hours of 9.2.2008. P.W.2 and others after seeing the quarrel between them, went over there and pacified the same, and on that night, the occurrence has taken place. In view of the property dispute, the appellant has actually attacked his grandmother and caused her death. Under the circumstances, it cannot be stated to be one done intentionally, but due to the quarrel as to the property dispute. But, at the same time, he had intention to cause such an injury which, in the ordinary course of event, would cause death. Hence the act of the accused would not attract the penal provision of murder, but would attract Sec.304 (Part I) of IPC, and awarding a punishment of 7 years Rigorous Imprisonment, in the opinion of this Court, would meet the ends of justice.
14.Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court on the appellant under Sec.302 of IPC are set aside and instead, he is found guilty under Sec.304 (Part I) of IPC and directed to undergo 7 years Rigorous Imprisonment. The sentence already undergone by him shall be given set off. The fine amount and the default sentence imposed by the trial Court, shall be treated as fine imposed under Sec.304 (Part I) of IPC.
15.In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed.
nsv
To:
1.The Principal Sessions Judge
Thiruvallur
2.The Inspector of Police
Avadi Tank Factory Police Station
Chennai 600 054.
(Crime No.136/2008)
3.The Public Prosecutor
High Court,
Madras