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.186 of 2009
R.Subbiah .. Appellant
vs
State, rep. by
Inspector of Police,
Chinnalapatty Police Station,
Dindigul District.
(Crime No.55/2005) .. Respondent
Criminal Appeal filed under Section 374(2)Cr.P.C against the Judgment of
conviction and sentence dated 28.9.2006 made in S.C.No.172 of 2005 on the file
of the Principal Sessions Judge, Dindigul.
!For appellant ... Mr.K.Ashok Kumar Ram
^For respondent ... Mr.P.N.Pandidurai
Addl.Public Prosecutor
:JUDGMENT
(Judgment of the Court was delivered
by M.CHOCKALINGAM,J)
Challenge is made to the judgement of the Principal Sessions Division,
Dindigul District dated 28.9.2006 made in S.C.No.172 of 2005 whereby the sole
accused/appellant stood charged, tried and found guilty of murder and awarded
life imprisonment along with a fine of Rs.5,000/-, in default, to undergo three
years rigorous imprisonment, apart from five years rigorous imprisonment and
fine of Rs.3,000/- on each count under Section 307 IPC (2 counts).
2. The short facts that are necessary for the disposal of this appeal can
be stated as follows:
(i) PW.1 is the wife of the deceased, Chinnakkalai. PW.2 is the daughter
of PW.1 and the deceased and she was given in marriage to the accused/appellant.
He was a native of Vellottam. PW.3 is the son of PW.1. From the time of
marriage, he did not maintain her properly and hence, she used to go and stay in
her parental home. On 12.3.2005, that was on the date of occurrence, in the
morning hours, he came to his father-in-law’s house and asked to send his wife
along with him and he was informed that his father-in-law, the deceased had gone
out and she would come after her father’s return and in the evening hours, at
6.00 p.m, he came to his father-in-law’s house and asked his wife to come with
him but he was informed that since he was always quarrelling with her, after
convening a panchayat, she would be sent and thereafter, at 9.00 p.m, he came
with an aruval, MO.1 and attacked the deceased indiscriminately and when PW.2
and PW.3 intervened, they were also attacked and they also sustained injuries.
(ii) Immediately, PW.1 rushed to the respondent police station along with
PW.2 and PW.3 where PW.18, Sub-Inspector of Police was on duty and gave a
complaint, Ex.P.1 and on strength of which a case was registered in Crime
No.55/2005 under Sections 324 and 302 IPC. Express F.I.R., Ex.P.23, was
despatched to the Court.
(iii) On receipt of the copy of the F.I.R, the Inspector of Police, PW.19,
took up investigation and proceeded to the spot, made an inspection and prepared
an Observation Mahazar Ex.p.11 and Rough Sketch Ex.P.24 and he also conducted
inquest over the dead body of the deceased in the presence of witnesses and
panchayatdars and the inquest report was marked as Ex.P.25. The body was
subjected to Post-Mortem by PW.12, attached to the Government Hospital,
Dindigul, and he gave a Post-Mortem Certificate, which was marked as Ex.P.17
wherein it is mentioned that the deceased would appear to have died of shock and
haemorrhage due to injuries sustained and injuries due to vital organs, about 12
to 16 hours prior to autopsy.
(iv) Pending investigation, the accused was arrested on 16.3.2005. When
he was examined, he came to give a confessional statement in the presence of
witnesses and recorded the same and the admissible portion of which was marked
as Ex.P.5 and he produced the Aruval, MO.1 used in the commission of offence and
the same was recovered under the cover of Mahazar Ex.P.28.
(v) On completion of the investigation, the investigating officer filed a
final report. The case was committed to the Court of Sessions. Necessary
charges were framed against the accused.
3. In order to substantiate the charges levelled against the accused, the
prosecution examined 19 witnesses and relied on 28 Exhibits and 10 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 denied on the part of the
accused. Neither witness was examined nor document was marked on the side of
the defence. 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 in respect of the
charges levelled against the accused and found the accused guilty of the charges
and awarded punishments as referred to above.
4. Advancing the arguments on behalf of the accused/appellant, the learned
counsel appearing for the appellant would submit that-
(i) in the instant case, the prosecution had failed to prove its case
beyond reasonable doubts. It is true the prosecution had three eye-witnesses
but they are all closely related to the deceased and they are not only
interested witnesses but their evidence was thoroughly discrepant and it is
liable to be rejected.
(ii) Apart from that, the injuries claimed by the witnesses, PW.2 and PW.3
were not sustained injuries and the evidence was so artificial.
(iii) The evidence of the Doctor, PW.12, who conducted autopsy and the
contents of Post-Mortem Certificate Ex.P.17 did not corroborate the evidence of
ocular testimony projected through PWs.1 to 3.
(iv) The arrest and the so called confessional statement and the recovery
of Material Objects were nothing but cooked up for the purpose of the
prosecution case.
(v) Added further the learned counsel that in the instant case, it is an
admitted position that PW.2 is the wife of the accused/appellant and during the
relevant time, she was staying in the house of PW.1. The accused came from his
native place to the place of father-in-law at 6.00 p.m., when he was ill-
treated, which would naturally provoke son-in-law, and when he was in drunken
mood at 9.00 p.m., he came and attacked the deceased and thus, there was
sufficient provocation and it was provoked by the father-in-law, the deceased,
and it was sustained provocation and it was lingering in the mind of the
accused/appellant, which resulted in acting so and hence, it cannot be stated
that he acted or done with an intention but due to sustained provocation and
hence, the Court has got to consider the same and it has got to be given effect
in recording a finding that it is not a case of murder but a case of culpable
homicide not amounting to murder.
5. The court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made and also
scrutinised the materials available.
6. It is not in controversy that one Chinnakkalai, husband of PW.1 was
done to death in the incident that had taken place at 9.00 p.m., on 12.3.2005
and following the inquest made by the Investigating Officer on the dead body and
preparation of the inquest report, the dead body was subjected to Post-Mortem by
Doctor, PW.12, who has categorically witnessed before the Court and the contents
of the Post-Mortem, Ex.P.17, are that the deceased would appear to have died of
shock and haemorrhage due to injuries sustained and injuries due to vital
organs, about 12 to 16 hours prior to autopsy and thus, the fact that he died
due to homicidal violence was never disputed before the trial Court or before
this Court and hence, there is no impediment for the Court in recording so.
7. In order to substantiate the charges levelled against the
accused/appellant, the prosecution relied on the evidence of three eye-
witnesses, which it marched before the trial Court. It is true, PW.1 is the
wife, PW.2 is the daughter and PW.3 is the son of the deceased. PW.2 and PW.3
are injured witnesses. It is settled proposition of law that merely on the
ground of relationship, the evidence of the injured witnesses cannot be brushed
aside but before acceptance, the Court must apply the test of careful scrutiny.
In the instant case, after the test of careful scrutiny, the Court is satisfied
that the evidence of these witnesses has got to be accepted and it is pointing
to the fact that PW.2, who is the wife of the accused/appellant and also PW.3,
who is the son of the deceased, were actually available at the time of the
incident. When the accused was attacking Chinnakkalai, the deceased, PW.2 and
PW.3 intervened and in that course, they also sustained injuries. They were
also examined by the Doctor PW.11 who was examined before the Court and he also
gave Accident Register Copy viz., Exs.P.14 and P.15 respectively, where the
place of occurrence and the time of occurrence and the manner in which they
sustained injuries were clearly noticed.
8. It is well settled proposition of law, in a give case when the
witnesses happened to be the injured witnesses, their evidence should not be
discarded unless and until strong circumstances are noticed by the Court or a
strong reason is brought out by the accused. In the instant case, neither any
circumstances is noticed nor any reason is brought to the notice of the Court.
Hence, no impediment was felt for accepting the testimony of these witnesses.
The ocular testimony projected through PWs.1 to 3 have been fully corroborated
by the evidence of the Doctor PW.12, who conducted Post-Mortem and also the
contents of the Post-Mortem Certificate Ex.P.17 apart from the evidence of
Doctor PW.11, who examined PW.2 and PW.3 and the contents of the Accident
Register Copy Exs.P.14 and P.15.
9. Yet another circumstance which is against the accused is the recovery
of MO.1 Aruval and also blood-stained shirt and dhothi viz., MO.9 and MO.10
being produced by the accused/appellant following his confessional statement.
This strong circumstance would connect the accused to the crime and thus, all
would indicate that it was the accused who committed the crime. Hence, the
contention put-forth by the learned counsel for the appellant in that regard did
not carry merit and they are liable to be rejected and accordingly, rejected.
10. Insofar as the second line of argument, the Court is unable to agree
with the learned counsel for the appellant. In the instant case, from the
evidence of PW.1, it would be quite clear that, from the time of marriage, the
accused/appellant did not maintain his wife properly which compelled her to stay
in her mother’s house. In the evening hours, he came to his father-in-law and
he asked him to send his wife PW.2, along with him. From the time of marriage,
he was not properly maintaining her and hence, he was informed that a panchayat
has got to be convened and then only his daughter would be sent with him. There
were exchange of words. These exchange of words, in the opinion of the Court,
cannot in no way would be provocation. Even assuming that the accused was
provoked, he left the place, and he came back at about 9.00 p.m., with an
Aruvual, MO.1 and attacked his father-in-law indiscriminately and caused his
instantaneous death. Thus, there was nothing which would provoke the
accused/appellant or the provocation would have sustained to cause such heinous
crime. Hence, the contention put-forth by the learned counsel for the appellant
that there was a provocation, muchless sustained provocation cannot be
countenanced.
11. So, the act of the accused was actually one of murder attracting the
penal provision of Section 302 IPC, and awarding life imprisonment and fine has
got to be sustained and accordingly, it is sustained. Insofar as the conviction
and sentence awarded under Section 307 IPC (2 counts) is concerned, at the time
of occurrence, PW.2 and PW.3 sustained injuries when intervened, while the
deceased was attacking the deceased. The act of the accused insofar as PW.2 is
concerned, will attract only Section 326 IPC, and awarding five years rigorous
imprisonment is sufficient and insofar as PW.3 is concerned, he sustained simple
injuries, which would attract only section 324 IPC and the punishment of simple
imprisonment for one year is sufficient and accordingly, it is modified. The
fine imposed under Section 307 IPC (2) counts by the trial Court is ordered to
be treated as one imposed under Section 326 IPC and 324 of the IPC. The
sentences awarded are to run concurrently.
12. Accordingly, the Criminal Appeal is disposed of.
asvm
To
1.The Principal Sessions Judge,
Dindigul District.
2.Inspector of Police,
Chinnalapatty Police Station,
Dindigul District.
(Crime No.55/2005)
3.The Additional Public Prosecutor,
Madurai Bench of Madras High court,
Madurai.