BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16/04/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL APPEAL NO.431 of 2001 1.Samikkannu 2.Ravi @ Ravichandran .. Appellants/ A.1 and A.2 Vs. The State represented by The Inspector of Police, Oomachikulam Police Station, Madurai District. .. Respondent/Complainant This criminal appeal is preferred under Section 374 of the Code of Criminal Procedure, against the judgment dated 29.03.2001, passed in S.C.No.322 of 2000, by the learned I Additional Sessions Judge cum Chief Judicial Magistrate, Madurai. !For Appellants ... Mr.M.R.Sreenivasan ^For Respondent ... Mr.N.Senthurpandian Additional Public Prosecutor :JUDGMENT
(The judgment of the Court was made by M.CHOCKALINGAM,J.)
The challenge in this appeal is as against the judgment dated 29.03.2001,
passed in S.C.No.322 of 2000, by the learned I Additional Sessions Judge cum
Chief Judicial Magistrate, Madurai, whereby the appellants two in number were
found guilty for the offences punishable under Section 302 read with Section 34
I.P.C and sentenced to undergo life imprisonment.
2. The short facts necessary for the disposal of this appeal can be stated
thus:
(i) P.W.1 is the younger sister of the mother of the deceased Gunendran.
P.W.2 is the uncle of the deceased. P.W.3 is his paternal uncle. There arose a
quarrel between the deceased and one Adaikalam, a close relative of the accused,
regarding the performance of a commitment of having a tonsure. In that
transaction, the said Adaikalam was attacked and he was under treatment. The
same came to the knowledge of the accused and both of them came to the house of
the deceased and enquired about him and further made a challenge that they would
finish off him.
(ii) At the time of occurrence during witching hour P.W.2 and P.W.3 found
the deceased and both the accused quarrelling with one another and in that
quarrel, the first accused attacked the deceased Gunendran with Aruval on
different parts of the body, while the second accused attacked with knife on the
flank. Not satisfied with those attacks, both the accused dragged the body of
the deceased Gunendran to the nearby place and leaving the same, they fled away
from the place of occurrence. P.W.2 and P.W.3 though witnessed the occurrence,
ran away from the place of occurrence being frightened by the incident.
(iii) Next day morning, P.W.1, the wife of the deceased, was informed that
the dead body of her husband was found in the place of occurrence and
immediately, she went to the scene of occurrence and found the dead body of her
husband and proceeded to the respondent Police Station where P.W.18, the Sub
Inspector of Police, was on duty on 04.01.2000 and P.W.1 gave Ex.P.1, the
complaint, and thereafter, a case in Cr.No.14 of 2000 under Section 302 I.P.C
came to be registered. Express F.I.R, Ex.P.17 was despatched to the Court.
(iv) The case was investigated by the Investigating Officer P.W.9 who
proceeded to the scene of occurrence and made an inspection in the presence of
witnesses and prepared Ex.P.13, the observation mahazar and Ex.P.14, rough
sketch. He also took steps to take photographs, caused the same and produced
the same before the Court.
(v) The Investigating Officer also conducted inquest on the dead body of
the deceased in the presence of witnesses and Panchayatars and prepared Ex.P.16,
the inquest report. Following the requisition for conducting post-mortem
Ex.P.11, P.W.12, the Doctor, conducted the post-mortem on the dead body and
gave Ex.P.12, the post-mortem certificate whereby he has opined that the
deceased died out of shock and haemorrhage due to the injuries sustained, 12 to
18 hours prior to the post-mortem.
(vi) The Investigating Officer recorded the statements of all the
witnesses. On 08.06.2000, the Investigating Officer arrested the first accused
when he came forward to give confessional statement and the admissible portion
of it, is marked as Ex.P.4. A.1 produced M.O.1, Aruval and M.O.7, blood stained
shirt which were recovered under a cover of the Mahazar.
(vii) The Investigating Officer came to know that the second accused
surrendered before the learned Judicial Magistrate No.II, Madurai, and he made a
requisition for police custody and the same was ordered. At the time of
interrogation, the second accused gave a confessional statement and the
admissible portion of it, is marked as Ex.P.20. Following the same, the second
accused produced M.O.9 knife which was recovered under a cover of mahazar and
thereafter, he was remanded to judicial custody.
(viii) All those material objects recovered from the place of occurrence
and from the dead body and the weapon of crime produced by the accused, were
subjected to chemical analysis, which resulted in two reports namely Exs.P.7,
the chemical analysis report, and P.10 the serologist report. On completion of
the investigation, P.W.9, the Investigating Officer filed the final report.
(ix) The case was committed to Court of Session and necessary charges were
framed. In order to substantiate the charges levelled against the accused, the
prosecution examined 20 witnesses and relied on 21 exhibits along with 9 M.Os.
After the evidence on the side of prosecution was over, the accused was
questioned under Section 313 Cr.P.C. as to the incriminating circumstances found
in the evidence of prosecution witnesses. The accused denied them as false. On
the side of the defence, neither oral nor documentary evidence was let in.
(x) After completion of trial, the trial court heard the arguments of both
sides, perused the materials available, found the accused guilty as per the
charges and awarded punishment as referred to above, which is the subject matter
of challenge in this appeal.
3. Advancing the arguments on behalf of the appellants,
Mr.M.R.Sreenivasan, learned Counsel for the appellants made the following
submissions:
(i) The occurrence had taken place during the night hours on 03.01.2000
according to the prosecution. Admittedly, there was no light either electric or
natural. P.W.2 and P.W.3, according to the prosecution, were the eyewitnesses.
Both of them categorically admitted that they were standing before 50 to 100
feet, but it was utter darkness and hence, P.W.2 and P.W.3, though claimed to be
eyewitnesses, could not have seen the occurrence at all. Though they claimed to
be the eyewitnesses of the occurrence, they did not inform the same either to
P.W.1, the wife of the deceased or anyone of the relatives or to the police, but
they went away from the place of occurrence. According to them, they frightened
on seeing the crime and hence, they went away and till they were examined by the
police, they did not talk or whisper the matter to anybody and this would
categorically reveal that they could not have seen the occurrence at all.
(ii) Moreover, P.W.2 and P.W.3 are the close relatives of the deceased and
it is pertinent to point out that P.W.1, who was not the eyewitness, was the
informant. Under such circumstances, it would clearly show that P.W.1 could not
have the direct knowledge of the occurrence and P.W.2 and P.W.3 would not be the
eyewitnesses to the occurrence. Hence, the prosecution had no direct evidence.
(iii) Insofar as the recovery of both the weapons namely Aruval and Knife,
two witnesses were examined. One turned hostile, but so far the evidence of
other witness is concerned, it is shaky and it should not have been believed.
Further, the medical evidence did not support the case of the prosecution.
(iv) Apart from the above, admittedly, the deceased got number of enemies
and it was someone who committed the crime and in view of the suspicion, the
accused/appellants have been roped in unnecessarily. Hence, they are entitled
for acquittal, but the lower Court has not considered anyone of the aspects of
the matter.
4. The Court heard the learned Additional Public Prosecutor for the State
on the above contentions and paid its anxious consideration on the submissions
made by both sides and also scrutinised the materials available on record.
5. The prosecution has proved the fact that the deceased Gunendran was
done to death in an incident that took place during night hours on 03.01.2000 at
the place of occurrence. Following the inquest made by the Investigating
Officer, the Doctor P.W.12, who conducted the post-mortem on the dead body of
the deceased, opined that he died out of shock and haemorrhage due to the
internal injuries sustained by him. The said fact was never questioned by the
appellants before the trial Court and hence, there is no impediment to record
the same.
6. In order to substantiate the charge that the first accused armed with
Aruval and the second accused armed with knife, attacked the deceased at the
time and place of the occurrence and caused the instantaneous death, the
prosecution examined two witnesses P.W.2 and P.W.3 as eyewitnesses. Admittedly,
they were close relatives of the deceased. Both of them have claimed that they
have witnessed the occurrence by standing 10 to 50 feet respectively.
7. According to the learned Counsel for appellants, their evidence should
not have been given any evidentiary value for two reasons. Firstly, the
occurrence had taken place during night hours in the utter darkness. Secondly,
these witnesses though claimed as eyewitnesses, kept calm without whispering to
anybody about the occurrence. These two contentions at the first instance did
not stand scrutiny. Firstly, these witnesses knew the accused very well
previously. According to them, both of them were standing in close proximity
when the occurrence had taken place. In such circumstances, it is highly
probable that they could identify the accused and even they could see the
accused without any difficulty.
8. Secondly, both the witnesses, according to them, after seeing the
occurrence, left for their respective places being got frightened on seeing the
occurrence.
9. Now, at this juncture, it is pertinent to point out that their
statements were recorded during the day time on 04.01.2000 and it has also
reached the Court on the next day i.e, 05.01.2000 without any delay whatsoever,
whereas they could give clear narration of the entire incident. No reason is
brought to the notice of this Court as to why these two witnesses came before
the Court of law to falsely implicate the accused. Apart from that, their
ocular testimony stood fully corroborated by the medical evidence.
10. After a careful scrutiny of evidence, this Court is of the view that
it has inspired the confidence of this Court. The lower Court rightly relied
upon the evidence of P.W.2 and P.W.3 which was supported by the medical
evidence. Yet another circumstance which was against the appellants, was the
recovery of the weapons of crime pursuant to the confessional statements given
by them and the evidence of the witness examined, remained unshaky. All put
together would show that these two accused attacked the deceased and caused the
instantaneous death.
11. Hence, all or anyone of the contentions put forth by the learned
Counsel for the appellants do not carry merit and the same is rejected.
12. Insofar as the second line of the argument of the learned Counsel for
the appellants is concerned, this Court is able to see force in the contention.
Even as per the evidence of P.W.2 and P.W.3, they witnessed the quarrel which
arose between the accused on the one side and the deceased on the other side at
the place of occurrence. Even as per the prosecution case, during the day
hours, the deceased attacked one Adaikalam, a close relative of the accused and
he sustained injury and was also hospitalised which provoked the accused persons
to question the same. At that time, the incident took place and there was a
quarrel between the accused on the one side and the deceased on the other side.
In that quarrel, the accused have acted and attacked the deceased and under such
circumstances, the act of the accused cannot be said to be an intentional or a
premeditated one and the act of the accused would not attract the penal
provision of murder, but would attract Section 304 (i) I.P.C. This Court is of
the view that awarding seven years of rigorous imprisonment would meet the ends
of justice.
13. Hence, the conviction and sentence imposed under Section 302 I.P.C is
modified and instead, they are convicted under Section 304 (i) I.P.C and
sentenced to undergo rigorous imprisonment for seven years. The sentence
already undergone by the accused shall be given set off.
14. With the above modification in the conviction and sentence, the
criminal appeal is dismissed. It is reported that the appellants are on bail.
Hence, the Sessions Judge concerned shall take steps to commit them to prison to
undergo the remaining period of sentence.
rsb/ssm
To
1.The I Additional Sessions Judge cum
Chief Judicial Magistrate,
Madurai.
2.The Inspector of Police,
Oomachikulam Police Station,
Madurai District.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.