BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11/07/2006 CORAM THE HONOURABLE MR JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR JUSTICE M.E.N.PATRUDU Criminal Appeal No. 25 of 2004 1.Krishnan 2.Dhanam ... Appellants Vs State rep. by The Inspector of Police, K.Paramathi Town Police Station, Karur District. ... Respondent Prayer This Criminal Appeal filed under Section 374 Cr.P.C. against the judgment passed in S.C.No.82 of 2001 dated 28.12.2001 on the file of the Additional District Sessions Judge-cum-Chief Judicial Magistrate, Karur. !For Appellants ... Mr.V.Illanchezian ^For Respondent ... Mr.S.P.Samuel Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM,J.)
This appeal has arisen from the Judgment of the Additional District
Sessions Judge, Karur made in S.C.No.82 of 2001 in which the first appellant
stood charged, tried and found guilty as per the charges under Section 302 and
sentenced to undergo life imprisonment and also found guilty under Section 307
IPC and sentenced to undergo 10 years R.I. and the second appellant stood
charged tried and found guilty as per the charges under Section 302 read with
114 IPC and sentenced to undergo life imprisonment and also found guilty under
Section 307 read with 114 IPC and sentenced to undergo 10 years R.I. and both
were ordered to undergo the imprisonment concurrently.
2. The short facts necessary for the disposal of this appeal can be
stated thus:
a) P.W.1 is the husband of P.W.2. The deceased was the son of P.Ws.
1 and 2. P.W.3 is wife of the deceased. The first accused is the husband of the
second accused. All of them are residents of Viswanathapuri Anna Nagar Colony.
They are residents of nearby place. The family members of P.W.1 used to go
through the common passage which was situated adjacent to the house of the
accused. For quite some time, when the members of the PW1 family were proceeding
with that passage, the accused raised an objection for the same. Even one week
before the date of occurrence, there was a quarrel between the two families. On
the date of occurrence on 14.2.2001 at about 7.30 p.m. when the deceased
Muniappan, Son of P.Ws.1 and 2 was proceeding through the passage as usual, the
accused raised an objection and following the same, the quarrel arose. P.W.1
went towards his house. At that time, the second accused went inside the house
and took the ‘Kuthu Aruval’ which is marked as M.O.1 in this case and handed
over to him and asked the first accused to stabbed the deceased. Accordingly, he
committed the act with a distressed mind. Muniappan fell down. The occurrence
was witnessed by P.Ws.1,2 and 3. Both the accused fled away from the place of
occurrence.
b) P.W.1 proceeded to K.Paramathi Police Station immediately, where
P.W.15, the Sub-Inspector of Police was on duty. At 00.30 hours, he recorded
the statement of P.W.1 in Ex.P.1, on the strength of which, a case came to be
registered on 15.2.2001 in Crime No.13 of 2001 under Sections 302 and 304 IPC .
Express FIR Ex.P.18, was despatched to the concerned Judicial Magistrate. On
receipt of the copy of the First Information Report, P.W.16, Inspector of police
took up investigation, proceeded to the scene of occurrence and made an
inspection in the presence of two witnesses and prepared Ex.P.2, the
observation Mahazar and drew Ex.P.19, the rough sketch. He recovered all the
M.Os from the place and both the dead body and the scene of occurrence were
photographed through P.W.16, the photographer.M.Os.9 and 10 series were
photographs and negatives respectively in that
regard. He made an inquest on the dead body and prepared Ex.P.20 inquest report
.
c) The dead body was sent to the hospital for the purpose of
autopsy.P.W.9, Dr.Ramesh, attached to the Government Hospital, Karur conducted
post-mortem on the dead body and found the following injuries.
1) A scar over left knee.
2) A scar over right dorsum of foot.
3) A scar below right knee on the medial side of leg. ”
The Doctor has issued Ex.P.9, the post-mortem certificate, wherein he has opined
that the deceased would appear to have died of shock and haemorrhage due to
injury to heart and left lung.
d) Pending investigation, both the accused were arrested on
16.2.2001. The first accused volunteered to give a confessional statement and
the same was recorded by the investigator, the admissible part of which was
marked as Ex.P.4. The second accused also volunteered to give a confessional
statement, and the same was recorded by the investigator, the admissible part of
which was marked as Ex.P.5. Following the same, the first accused produced M.O.1
Kuthu
Aruval which was recovered under a cover of Mahazar Ex.P.6 in the presence of
same witnesses.
e. The first accused was also medically examined by P.W.14
Dr.Susheela, on 16.2.2001 and the first accused made a statement that at the
time of occurrence, when he was about to run from the place of occurrence, he
fell down and sustained injury. The wound certificate in respect of the injury
found on the first accused is Ex.P.17. All the M.Os. recovered from the place
of occurrence and from the dead body and also M.O.1 ‘Kuthu Aruval’ . were
subjected to chemical analysis by the Forensic Department, on a requisition made
by the Investigator through the Judicial Magistrate concerned. On analysis,
Ex.P.13, the Chemical Analyst’s report and Ex.P.14, the Serologist’s report were
received by the Court. On completion of investigation, final report was filed
by the investigating officer before the Committal Court.
3. The case was committed to the Court of Sessions and
necessary charges were framed. In order to substantiate the charges levelled
against the accused, the prosecution examined 16 witnesses and relied on 21
exhibits and 12 M.Os. On completion of the evidence on the side of the
prosecution, both the accused were questioned under Section 313 Cr.P.C. as to
the incriminating circumstances found in the evidence of prosecution witnesses.
The accused have flatly denied them as false. No defence witness was examined.
On completion of trial, both sides were heard. The learned trial Judge has found
both the accused guilty as per the charges and awarded the punishment as
referred to above. Hence, this appeal at the instance of the appellants/accused
before this Court.
4. While advancing the arguments on behalf of the appellants,
learned counsel would submit that all the three witnesses, examined by the
prosecution to prove the case, were close relatives of the deceased and apart
from that, there are lot of discrepancies and inconsistencies in their evidence
and it would clearly indicate that their evidence could not be relied on. Apart
from that, the medical evidence did not support the prosecution case and in the
instant case, the arrest of first and second accused and their confessional
statements and also the recovery of Kuthu Aruval, M.O.1 were all nothing but
subsequent an introduction made by the prosecution to suit its case. Apart from
that, in the instant case, the place of occurrence is the house of the accused
and this fact is not considered by the trial Court. Therefore, considering all
the above submissions, they are entitled for an acquittal in the hands of this
Court.
5. Heard the learned Additional Public prosecutor on the above
contentions.
6. In order to prove the fact that Muniappan, the son of P.Ws. 1 and
2 and husband of P.W.3, died out of homicidal violence, the prosecution has not
only relied on the evidence of P.Ws.1 to 3, but has also relied on the medical
evidence. Following the inquest, the dead body was subjected to post-mortem by
P.W.9, the Doctor who has issued Ex.P.9,Post-mortem Certificate wherein he has
opined that the deceased died out of shock and haemorrhage due to the injuries
sustained. Apart from that, the place and time of occurrence were never
questioned by the appellants/accused and apart from that, in the instant case,
the fact that the deceased died out of homicidal violence was never questioned
by the accused either before the Court below or before this Court. Hence, it has
got to be recorded so.
7. In order to prove the act of the deceased, the prosecution has
relied on the direct evidence projected through P.Ws. 1 to 3, who are father,
mother and wife of the deceased respectively. In the instant case, it is
pertinent to point out that at the time of occurrence, there is no material to
indicate that any other independent witnesses are available and thus except
these three witnesses, no other witnesses had narrated the prosecution case. At
this juncture, on exercise of careful scrutiny of the evidence of P.Ws.1 to 3,
who are close relatives of the deceased, their evidence stood the test and
hence, their evidence inspired the confidence of the Court. Hence, this court
has to necessarily accept the evidence as has been rightly done by the trial
Court. Further the evidence of medical witness is in full corroboration with the
prosecution case. To the advantage of the prosecution, both the accused were
arrested and both of them gave confessional statements and pursuant to the
confessional statement of first accused in the presence of two witnesses, M.O.1
has been recovered under a cover of Mahazar and it has been subjected to
chemical analysis along with the other material objects. The scientific opinion
is also in favour of the prosecution. Thus, the ocular testimony is in full
corroboration with the medical evidence . Hence, without any hesitation
whatsoever it could be safely recorded that it was because of the act of the
first accused who stabbed the deceased with Kuthu Aruval M.O.1, the deceased
met with an instantaneous death. There is evidence to show that it was the
second accused who took the Kuthu Aruval and handed over to her husband, A1
with which he stabbed the deceased and thus not only the first accused has
committed the act, but also the second accused has abetted the first accused for
the commission of the said act and hence it has got to be held without any
hesitation whatsoever that the first and second accused have caused the death of
the deceased.
8. Now coming to the nature of the act of the accused , this Court
is able to see that the act of both the accused was neither intentional nor pre-
meditated and hence it would not fall within the ambit of murder. Even
according to the prosecution, there is a common passage in front of the house of
the accused and the members of P.W.1’s family used to go through the said
passage , for which course, the accused objected and there was often quarrel
between the family members. On the date of occurrence, the deceased was going
through that passage. Though both the accused have objected the same, he
proceeded through the common passage and thus, there was a quarrel between both
the family members and following the same, there was a sudden provocation due to
which, the accused have acted so. The second accused took Kuthu Aruval and
handed over to first accused with which the first accused has stabbed the
deceased. Thus, the act of the accused was not intentional or pre-mediated.
Though not the act of the accused would fall within the ambit of murder, it
would be of culpable homicide not amounting to murder. The accused have not
acted with any intention, but at the same time, it was well within their
knowledge that the injuries were likely to cause death of the deceased which
act in the opinion of this Court would warrant punishment under Section 304(i)
IPC. and hence the first accused has got to be found guilty of the offence under
Section 304(i) IPC and the second accused has got to be found guilty of the
offence under Section 304(i) IPC read with 109 IPC and awarding punishment of 7
years Rigorous Imprisonment would meet the ends of justice.
9. Hence, the judgment of the lower court in respect of the charge
under Section 302 IPC is set aside and instead the first accused is found guilty
of the offence under Section 304(i)IPC and sentenced to undergo 7 years R.I.
As regards A2, she is found guilty under Section 304(i) read with 109 IPC for
which she is directed to suffer 7 years R.I.
10. In so far as the act of the accused in causing injuries to P.W.2
, there is sufficient evidence to hold as per the medical evidence that their
act would amount to attempt to murder, but they have caused grievous injury and
hence, it would fall under Section 326 IPC for which the punishment of 3 years
R.I. is awarded and the sentence is ordered to run concurrently. The period
already under gone by the accused is given set off.
11. In the result, with the above modification in conviction and
sentence, the Criminal appeal is dismissed.
VJY
To
The Additional Sessions Judge-cum-Chief Judicial Magistrate, Karur.
1.-do- through the Principal Sessions Judge, Karur
2.The District Collector, Karur.
3.The Director General of Police, Karur.
4.The Inspector of Police, K.Paramathi Town Police Station, Karur
5.The Superintendent, Central Prison, Trichy.
6.The Superintendent of Police, Special Prison for Women, Trichy
7.The Public Prosecutor, High Court, Madras.