BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08/02/2008
CORAM
THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM
and
THE HONOURABLE MR. JUSTICE S.PALANIVELU
Crl.A.(MD) No.237 of 2007
Manickam ... Appellant
vs.
State through Inspector of Police,
Vadamadurai Police Station,
Dindigul
(Crime No.40/2005) ... Respondent
Criminal Appeal filed under Section 374 (2) Cr.P.C against the Judgment of
conviction and sentence dated 9.11.2006 made in S.C.No.46 of 2006 by the learned
Principal Sessions Judge, Dindigul.
!For appellant ... Mr.M.Gurudas
^For respondent ... Mr. P.N.Pandithurai
Addl.Public Prosecutor
:JUDGMENT
(Judgment of the Court was made
by M.CHOCKALINGAM,J)
Challenge is made to the judgment of Principal Sessions Division, Dindigul
dated 9.11.2006 made in S.C.No.46 of 2006 whereby the appellant/ sole accused
stood charged, tried and found guilty under Sections 449 and 302 IPC and awarded
5 years rigorous imprisonment along with a fine of Rs.1,000/- with a default
sentence of six months rigorous imprisonment for the first charge and
imprisonment for life along with a fine of Rs.2,000/- with a default sentence of
2 years rigorous imprisonment for the second charge.
2. The short facts that are necessary for the disposal of this appeal can
be stated as follows:
(i) PW.1 is the younger brother of the deceased Akkammal. She was given
in marriage to one Mokkal Chettiar who died 30 years before. During his life
time, he married one Vellaiammal @ Palaniammal, through whom, he had a daughter
and two sons. The accused was one of those two sons. This Akkamma, in her old
age, was maintaining herself out of old age pension, which was given to her.
Out of the said sum of Rs.200/-, she used to give Rs.150/- to PW.1 for her food
and she used to keep with her Rs.50 for her expenditure. The accused/appellant,
who was residing at Tiruppur, on his visit, he used to get Rs.10/- from her. On
some occasions, when she refused to make payment, she was threatened by him.
This fact is known to PW.1, PW.2, PW.3 and PW.5.
(ii) On the date of occurrence, i.e. on 15.2.2005, in the wee hours, PW.1
was sleeping in his house. At about 4.00 a.m., on 15.2.2005, PW.1 heard a
distressing cry in the next hut where Akkammal was sleeping. PW.1 could not
come out of his house since doors of his house was bolted outside. Immediately,
neighbours came and open his house. But, at that time, PW.1 was able to see
the accused coming out of the hut turning off the light. They went inside the
house and saw the severely injured Akkammal. The said Akkmmal told PW.1 that
the accused attacked her with kadapah stones and poured some liquor on her face
and went away. When PW.1 was about to call for a doctor, the said Akkammal died.
(iii) PW.1 proceeded to Vadamadurai Police station where PW.15 S.I.
of police was on duty at about 12.00 noon on 15.2.2005. PW.1 gave Ex.P.1
complaint. On the strength of which, a case came to be registered in Crime
No.40/2005 under Section 302 IPC. F.I.R Ex.P.11 along with complaint Ex.P.1 was
despatched to the Court and to the higher officials.
(iv) On receipt of a copy of the F.I.R, PW.16, Inspector of Police,
attached to respondent Police Station, took up investigation, proceeded to the
scene of occurrence, made an inspection in the presence of witnesses and
prepared an Observation Mahazer Ex.P.2 and also a rough sketch Ex.P.12. He
conducted inquest on the dead body of the deceased in the presence of
panchayatdars and witnesses and prepared an Inquest Report Ex.P.13. He
recovered MO.1 Kadappa Stone and other material objects available from the
place.
(v) The dead body of the deceased was subjected to post-mortem by PW.10
Doctor, attached to Government Hospital, Dindigul, and he found injuries as
described in the post-mortem certificate Ex.P.7 wherein he has opined that the
deceased would appear to have died due to injuries sustained on the skull.
(vi) PW.17 took up further investigation. He arrested the accused on
17.2.2005 at 14.00 hours. During investigation, the accused gave a confessional
statement and the admissible part of that evidence was marked as Ex.P.3.
Pursuant to the confession, he produced a shirt MO.3. The accused was sent for
judicial remand.
(vii) All the material objects recovered from the place of occurrence and
from the dead body of the deceased were sent to Forensic Sciences Department for
chemical analysis, which resulted in two reports viz., Chemical Analysis Report
Ex.P.17 and Serological Report Ex.P.18.
(viii) On completion of the investigation, PW.18, who took up further
investigation, filed a final report against the accused/appellant as per the
charges. The case was committed to the Court of Sessions. Necessary charges
were framed.
3. In order to substantiate the charges levelled against the accused, the
prosecution examined 18 witnesses and relied on 18 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 flatly denied on the part
of the accused. No defence witness was examined. 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 and found the accused/appellant guilty of the charges and
awarded punishments as referred to above, which is the subject matter of the
appeal before this Court.
4. Advancing his arguments on behalf of the appellant, Mr. M.Gurudas,
learned counsel appearing for the appellant, would submit as follows:-
(i) The entire case was rested on circumstantial evidence. The
prosecution had no direct evidence to offer pointing to the guilt or complicity
of the accused. Relying on the decisions of the Supreme Court in State of
Madhya Pradesh Vs. Nisar [(2007) 5 SCC 658], the learned counsel submitted that
it is highly improbable to accept the case of the prosecution.
(ii) The prosecution was unable to place or prove necessary circumstances
pointing to the guilt of the accused/appellant. The evidence of PW.1, PW.2, PW.3
and PW.5 were not only inconsistent but also self-contradictory and they could
not have seen the occurrence at all. Thus, their evidence was not helpful to the
prosecution.
(iii) PW.1 has spoken in his cross-examination that he did not know who
had attacked his sister with the stones. At the time of occurrence, it was dark
and no light was there. The light was switched off.
(iv) PW.2 has categorically admitted that he had not seen the occurrence
at all. The evidence of PW.2 if read would clearly reveal that at about 4.00
a.m., he heard a distressing cry but he went and saw only at 5.30 a.m., and that
there was an interval of 1.1/2 hours. Had really the occurrence taken place,
PW.2 could have immediately rushed to the hut of the deceased but he did not
done so. The interval of 1.1/2 hours would clearly belie the evidence of PW.2.
(v) Insofar as the alleged recovery of material objects, only one witness
was examined but he could identify the dhothi before the Court. Hence, alleged
confession and arrest cannot be accepted.
(vi) In the instant case, the occurrence had taken place at about 4.00
a.m., but the Complaint Ex.P.1 was given at about 12.00 noon. The scene of
occurrence from the police station was just 7 kms. This delay was unexplained.
Apart from that F.I.R. had reached the Court after 2.1/2 hours. These all would
go to show that there was complete improvements and embellishments in the
prosecution case.
(vii) Apart from that, the alleged recovery of material objects were not
proved.
(viii) Thus, the prosecution had no evidence worth mentioning to offer to
bring home the guilt of the accused but the Trial Court has believed such
evidence and has erroneously rendered judgment and hence, it has got to be set
aside and the appellant is entitled for acquittal.
5. The Court heard the learned Additional Public Prosecutor on the above
contentions.
6. The Court paid its utmost attention to the submissions and made a
thorough scrutiny on the entire materials available on record.
7. It is not a fact in controversy that one Akkammal, the sister of PW.1
was died out of homicidal violence in the occurrence that took place on
15.2.2005. Following the inquest made by the investigator, the dead body of
the deceased was subjected to post-mortem by Doctor PW.10, who has given his
opinion in Ex.P.7 post-mortem certificate that the deceased die out of injury
sustained on the head, about 24 – 40 hours prior to autopsy. The fact that the
deceased died out of homicidal violence was never questioned by the appellant at
any stage of the proceedings. Hence, it has got to be factually recorded so.
8. In order to substantiate the case of the prosecution that it was the
accused, who attacked her with stones and caused her death, the prosecution had
no direct evidence to offer. The prosecution has examined 4 eye-witnesses.
PW.1 is the brother of the deceased, PW.2, PW.3 and PW.5 are nighbours,
according to PW.1. As rightly pointed out by the learned counsel for the
appellant, the evidence of PW.5 is hearsay evidence. PW.3 had not seen the
occurrence at all.
9.The prosecution had to its benefit the evidence of PW.2. PW.2 has
categorically spoken to the effect that he came out of the house, saw the
accused and light was burning in the house of the deceased. Further, he had also
asked the accused why were you came in the night hours and what was the
necessity to be in the night hours but the accused was just proceeding without
giving any reply.
10. It is pertinent to point out that the accused was actually known to
all the witnesses. It was his usual practice to come and take money from the
deceased. This was spoken to by all the witnesses but that fact was never
denied by the appellant. Hence, it would be clear that the accused was already
known to them. PW.2 had not only seen the accused coming out from the hut of
the deceased but he had also questioned him how he happened to be there in the
wee hours. But the accused had uttered nothing but he went away.
11. It is further contended by the learned counsel for the appellant that
there was fracture on the skull but there was no sprinkling of blood or oozing
of blood from the place of occurrence and there was no recovery of blood stained
mud. It is pertinent to point out that there was a fracture on the skull of the
deceased. The post-mortem doctor PW.10, had noticed blood oozing inside the
skull and near the brain matter. It is needless to point out that since there
was oozing of blood inside the skull, blood stained mud could not be recovered.
In such circumstances, that cannot be a point in favour of the
accused/appellant.
12. In the instant case, MO.1 Kadapa stone had been recovered from the
place of occurrence and the Doctor PW.10 had deposed to the effect that fracture
of the skull of the deceased could be possible if attacked with the stone.
13. MO.3 dhothi recovered pursuant to the confession, was subjected to
chemical analysis test by the Forensic Sciences Department. They found
sulphuric acid, which connects the nexus of the crime with the accused.
14. The contention put-forth by the learned counsel for the appellant
that PW.2 witness, who was examined for the recovery of MO.3 dhoti could not
identify the same, cannot be countenanced because no question was asked to him
whether he had identified
the dhoti MO.3 but the witness was so certain before the Court that it was
recovered on production pursuant to confession of the accused. Hence, that
leaves no doubt in the minds of the Court.
15. The Court is mindful of the caution made by law and the rules of the
Supreme Court in case of circumstantial evidence. The Court must be satisfied
with every chain of circumstances placed before the Court pointing to the
hypothesis that except the accused no one could have committed the offence. In
the instant case, no sooner than the occurrence was taken place, the prosecution
witnesses have seen the accused coming out of the hut, and on hearing a
distressing cry, they got into the hut and saw the severely injured deceased and
she had told PW.1 that the accused attacked her with kadapah stone and poured
some liquor on her face and then she died. Thus, sufficient circumstances were
placed and proved by the prosecution.
16. Hence, one or any of the contentions put-forth by the learned counsel
for the appellant do not merit acceptance and they are rejected. It is a case
where 95 years old lady was done to death by stone. Such an inhumane act or
barbarous act of the accused would be termed nothing but only as a murder. The
trial Court has rightly come to the conclusion that the prosecution had proved
guilt of the accused. There is nothing to interfere with the judgment of the
trial Court either factually or legally. Hence, the judgment of the trial Court
has got to be affirmed and accordingly, affirmed. The Criminal Appeal fails and
the same is dismissed.
asvm
To
1. The Principal Sessions Judge,
Dindigul.
2. Inspector of Police,
Vadamadurai Police Station,
Dindigul
(Crime No.40/2005)
3.The Additional Public Prosecutor,
Madurai Bench of
the Madras High Court,
Madurai.