BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/02/2007 CORAM: THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR. JUSTICE G.RAJASURIA Crl.A.(MD) No.356 of 2004 Samy .. Appellant vs. The State rep. by The Inspector of Police, Tenkasi Police Station, Tirunelveli District. Crime No.96 of 2001 .. Respondent Criminal Appeal filed under Section 374 Cr.P.C against the Judgment of conviction and sentence dated 25.09.2003 made in S.C.No.627 of 2001 on the file of the Principal Sessions Court, Tirunelveli. !For appellant : Mr.M.Ajmal Khan ^For respondent : Mr.Daniel Manoharan Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM, J)
The sole accused in a case of murder, who stood charged under Section 302
IPC, tried and found guilty as per the charge of murder and awarded life
imprisonment along with a fine of Rs.1,000/- in default to undergo six months
Rigorous Imprisonment by Judgement dated 25.9.2003 in S.C.No.627 of 2001, has
preferred this appeal challenging the same.
2. The short facts necessary for the disposal of the appeal can be stated
thus:
(a) PW.1 Subbammal is the wife of the deceased and they were residing in
Thilagar Street, Krishnapuram of Kadayanallur within the jurisdiction of
Kadayanallur Police Station. The accused was also belonging to the same place.
The accused was living with his wife Parvathi.
(b) Prior to the date of occurrence, for about 15 days, the said Parvathi
was found missing and the appellant/accused entertained a suspicion that it was
the deceased who would have kidnapped her. Hence he bore a grudge on the
deceased. On the date of occurrence i.e. on 17.2.2001 at about 7.00 p.m. PW.1
and her husband were there in a bus stop i.e. at Tenkasi Koolkadai, to board a
bus, the accused came there, found the deceased and saying “you have kidnapped
my wife, you pretend that you do not know any thing”, took out a knife and
stabbed him twice as a result of which he fell down. When PW.1 intervened, he
also threatened her. The deceased met with an instantaneous death. The
occurrence was witnessed by PW.1 and PW.2. PW.10 saw the accused/appellant
running away from the place of occurrence with the weapon of crime.
(c) PW.1 went to Tenkasi Police Station and reported the occurrence to the
Sub Inspector of Police PW.21, who reduced it into writing and the same was
marked as Ex.P.1. On the basis of Ex.P.1, he registered a case in Crime
No.96/2001 under 302 IPC. Printed F.I.R is Ex.P.11, which was despatched to the
Judicial Magistrate, Tenkasi.
(d) On receipt of the copy of the F.I.R, PW.25 took up further
investigation. He went to the spot and made an inspection and prepared an
Observation Mahazar Ex.P.7 and Rough Sketch Ex.P.18 in the presence of the
witnesses and he made arrangements for taking photographs. PW.3 is the
photographer. The photographs and negatives of the dead body of the deceased was
marked as MO.4 (Series). He recovered the Material Objects available at the
place of occurrence. He conducted inquest on the dead body of the deceased and
prepared Inquest Report Ex.P.19. Following the same, the body was subjected to
post-mortem by the Doctor (PW.17) attached to the Government Hospital, Tenkasi.
He found injuries and he issued post-mortem Certificate Ex.P.3 wherein he opined
that the deceased would appear to have died of injury to vital organ (Heart and
Lungs), shock and heamorrhage from vital organs (Heart and Lungs).
(e) Thereafter, on 18.2.2001 at about 5.30 p.m., the accused was arrested
in the presence of V.A.O. (PW.20) and other witnesses. The accused voluntarily
gave his confessional statement and the admissible portion of which was marked
as Ex.P.9, following which, he produced the knife MO.1 and the same was
recovered under Ex.P.10 mahazar. On production of the Material Objects
recovered from the accused pursuant to the confessional statement, they were
subjected to chemical analysis. Ex.P.16 is the Chemical Analysis Report.
Ex.P.17 is the Serological Report.
(f) On completion of the investigation, the Investigating Officer PW.25
filed a final report for the charge of murder.
(3) Thereafter, the case was committed to the Court of Sessions.
Necessary charge was framed. In order to substantiate its case, the prosecution
has examined 25 witnesses, marked 20 Exhibits and 11 MOs.
(4) On completion of the evidence on the side of the prosecution, the
accused was questioned under Section 313 Cr.P.C in respect of the incriminating
circumstances found in the evidence of the prosecution witnesses and the accused
denied the charges as false. No defence witness was examined.
(5) The trial Court, after considering the submissions made on both sides
and after perusing the materials placed on record, and giving an opportunity to
the accused to address his case, took the view that the prosecution has proved
its case beyond reasonable doubt and found the accused/appellant guilty as per
the charge of murder, the subject matter of challenge is before this court.
(6) Advancing the arguments on behalf of the appellant, the learned
counsel would submit that in the instant case, the prosecution rested its case
on the evidence of PW.1 and 2 and also PW.10. There are a lot discrepancies in
the evidence of eye witnesses. If carefully scrutinised, it will not stand the
test and hence, the trial Court should have rejected the testimony. The medical
evidence did not support the case of the prosecution. The recovery of weapon of
the crime pursuant to the arrest and alleged confession were all nothing but
subsequently planted by the prosecution to support its case. Thus, the
prosecution did not place sufficient evidence or it cannot also be stated that
the prosecution has proved its case beyond reasonable doubt.
(7) Added further the learned counsel that even assuming that the
prosecution has proved the fact that it was the accused who stabbed the deceased
to death, in the instant case, the act of the accused would not attract the
penal provisions of murder. Even as per the accused, he was provoked by the
fact that it was the deceased who had taken away his wife and on that
provocation the accused had stabbed. Thus, in the instant case, the act of the
accused was neither intentional nor pre-meditated in order to cause the death.
Hence the penal provisions of murder cannot be attracted and hence it is only a
case of culpable homicide not amounting to murder and this point has got to be
considered by this Court.
8. Court heard the learned Addl.Public Prosecutor on the above
contentions.
9. It is not in controversy that the deceased is the husband of PW.1 and
the deceased was done to death but homicide. In the instant case, the
prosecution has not only relied on the direct evidence of witnesses but also
relined on the evidence of the Doctor PW.17, who conducted autopsy on the dead
body and also relied on the post-mortem certificate Ex.P.3 issued by him and his
categorical opinion is that the deceased would appear to have died 24 or 25
hours prior to autopsy. Apart from that, the appellant/ accused never questioned
this fact at any stage of proceedings before the trial Court and hence, it has
got to be recorded and recorded so.
10. In order to substantiate the case of prosecution, unfortunately, out
of the two witnesses first witness is the wife of the deceased. On that ground,
her evidence cannot be discarded but it must be subjected to a careful scrutiny.
Despite of such exercise, the trial Court has thoroughly satisfied with her
evidence since her evidence has inspired the confidence of the Court. According
to PW.2, he was standing at the bus stop to board a bus, at that time, the
deceased was stabbed to death. Thus, the occurrence was witnessed by PW.2.
PW.10, who was running a petty shop 20 ft. away from the scene of occurrence
also witnessed the accused running with the weapon of crime and stabbing the
deceased. Despite the cross-examination of the witnesses, the testimony stood
and thus their evidence has got to be accepted and the trial Court has rightly
accepted their evidence.
11. The prosecution in its favour has pointed out yet another circumstance
about the arrest of the accused and pursuant to confessional statement, recovery
of MO.1 Knife and thus the prosecution has proved to the extent that it was the
accused who stabbed the deceased to death.
12. Coming to the question of the act of the accused, the Court has
necessarily to discredit the contention of the learned counsel for the
appellant. The only contention put-forth by the learned counsel for the
appellant is that due to sudden provocation the accused had acted. In the
instant case, the statement of the accused is that he was under the impression
that it was the deceased, who had taken his wife away. Had it been true, the
accused ought to have given a complaint to the police. Without ascertaining the
fact, he acted in a cruel manner and stabbed the deceased to death. From the
post-mortem certificate, it could be seen that there are 21 injuries inflicted,
out of which, 19 were cut and stab injuries. In the opinion of the Court, only
on a suspicion, the appellant has acted in a cruel manner even without
ascertaining the fact. In such circumstances, nothing could be inferred that
there was a sudden provocation and the accused acted on frustration and the act
of the accused would only attract the penal provisions of culpable homicide not
amounting to murder. Under the given circumstances, it would be clear that he
acted naturally attracting the penal provisions of murder.
13. The trial Court has rightly convicted the accused under Section 302
IPC and awarded life imprisonment and it does not require any interference by
this Court. The judgment of the trial Court is sustained. The Criminal Appeal
fails and the same is dismissed.
To
1. The Principal Sessions Court,
Tirunelveli.
2. The Inspector of Police,
Tenkasi Police Station,
Tirunelveli District.
(Crime No.96/2001)
3.The Additional Public Prosecutor,
Madurai Bench of
the Madras High Court,
Madurai.