BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRL.A.(MD) No.46 of 2007 Murugan .. Appellant vs State rep. by Inspector of Police Vathirairuppu Police Station (Crime No.214 of 2003) Virudhunagar District .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Srivilliputhur, made in S.C.NO.39 of 2004 dated 7.9.2004. !For Appellant ... Mr.A.P.Muthupandian ^For Respondents ... Mr.P.N.Pandithurai Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This appeal has arisen from the judgment of the Principal Sessions
Division, Srivilliputhur at Virudhunagar, made in S.C.No.39 of 2004 whereby the
sole accused/appellant stood charged and found guilty under Sec.302 of I.P.C.
and awarded life imprisonment along with a fine of Rs.1,000/- and default
sentence.
2.The short facts necessary for the disposal of this appeal can be stated
as follows:
(a) P.Ws.1 to 3 were all residents of Ambedkar Street, V.Pudupatti
Village. The deceased Vanitha is the daughter of P.W.1 and the sister of P.Ws.2
and 3. The appellant is the husband of the deceased. On 18.10.2003 at about
11.00 A.M., when Vanitha was coming from a kanmai after taking bath, one Pandian
and others were teasing her, and immediately it was brought to the notice of her
husband. They proceeded to Watrap Police Station and gave a complaint to
P.W.11, the Sub Inspector of Police, on 19.10.2003 at about 12.15 P.M., on the
strength of which a case came to be registered in Crime No.213 of 2004 under
Sections 3 and 4 of the Prevention of Eve teasing Act, and it was pending
investigation.
(b) While the matter stood thus, on 23.10.2003, at about 1.30 P.M., P.Ws.1
to 3 were standing outside the house and chatting. At that time, they found
Vanitha running and uttering “My husband is cutting me” and the accused chasing
her. Immediately, P.Ws.1 to 3 went nearby; but, Vanitha who was running, fell
down. Immediately, the accused indiscriminately cut her with an aruval on
different parts of the body. This was witnessed not only by P.Ws.1 to 3, but
also by P.W.4. Vanitha died instantaneously. The accused fled away from the
place of occurrence. P.W.1 proceeded to the respondent police at about 6.00
P.M. P.W.11, the Sub Inspector of Police, was on duty at that time. P.W.1 gave
a report, which is marked as Ex.P1, on the strength of which a case came to be
registered in Crime No.214 of 2003 under Sec.302 of IPC. The express F.I.R.,
Ex.P9, was despatched to the Court. P.W.12, the Inspector of Police, on receipt
of the copy of the FIR, took up investigation, proceeded to the spot, made an
inspection in the presence of witnesses and prepared an observation mahazar,
Ex.P3, and a rough sketch, Ex.P10. He recovered the material objects including
bloodstained earth and sample earth. He conducted inquest on the dead body of
Vanitha in the presence of witnesses and panchayatdars and prepared an inquest
report, Ex.P11. P.W.9 was the Photographer through whom the entire dead body
was photographed. M.O.4 series are the photos and negatives.
(c) Following the inquest, the dead body was subjected to postmortem by
P.W.8, the Senior Assistant Surgeon, attached to the Government Hospital,
Watrap. After postmortem, he has given a certificate, Ex.P8, wherein he noted
10 external cut injuries, and he has also opined that she died out of shock and
haemorrhage of the cut injury involving the major blood vessels of neck.
(d) The Investigator came to know that the accused surrendered before the
Magistrate’s Court. Then, he filed an application for police custody, and the
same was ordered. The accused was taken to police custody and was interrogated.
He gave a confessional statement voluntarily which was recorded in the presence
of witnesses. The admissible part is marked as Ex.P5, pursuant to which he
produced M.O.1, aruval, which was recovered under a cover of mahazar, Ex.P6. He
was again sent for judicial remand. All the material objects recovered from the
place of occurrence and from the dead body, and M.O.1, aruval, recovered on
production by the accused pursuant to the confession, were subjected to chemical
analysis which resulted in two reports namely Ex.P13, the Chemical Analyst’s
report, and Ex.P14, the Serologist’s report. On completion of investigation,
the Investigator filed the final report.
3.The case was committed to Court of Sessions, and necessary charge was
framed. The prosecution examined 12 witnesses and relied on 14 exhibits and 7
material objects. On completion of evidence on the side of the prosecution, the
accused was questioned under Sec.313 of Cr.P.C. procedurally as to the
incriminating circumstances found in the evidence of the prosecution witnesses,
which he flatly denied as false. No defence witness was examined. The Court
below heard the arguments advanced, took the view that the prosecution has
proved the case beyond reasonable doubt, found him guilty as per the charge of
murder and awarded life imprisonment, which is the subject matter of challenge
before this Court.
4.Advancing the arguments on behalf of the appellant, the learned Counsel
made the following submissions:
(i) In the instant case, according to the prosecution, the occurrence has
taken place at about 1.30 P.M.; but, the report was given only at 6.00 P.M., and
thus, there was a delay of 4 . hours noticed. The FIR has also reached the
Court only at 11.45 P.M., and thus, there also there is a delay.
(ii) It is highly doubtful whether Ex.P1 has come into existence as put
forth by the prosecution. According to P.W.1, the police came to the spot
immediately, and hence, Ex.P1, which, according to the prosecution, came into
existence at 6.00 P.M., cannot be accepted.
(iii) Further, in the instant case, all these witnesses are closely
related to each other.
(iv) A sketch was prepared by the Investigator marked as Ex.P10, wherein
the dead body is found away from the house of P.Ws.1 to 3, and assuming for a
moment that they were actually standing in front of the house, they could not
have seen the occurrence at all, and hence, the claim of the prosecution that
P.Ws.1 to 3 had witnessed the occurrence cannot be accepted.
(v) The medical opinion was also not in favour of the prosecution.
(vi) Apart from the above, it is highly a matter of surprise to note that
when he was taken to police custody, he gave a narration of the incident by way
of confession and also produced M.O.1 aruval. These things are unbelievable;
but, the lower Court has not considered these aspects of the matter.
(vii) Even assuming that the prosecution has proved the case to the extent
that it was the accused who attacked her with aruval and caused her death, the
act of the accused would not attract the penal provision of murder, since he
suspected her fidelity, and just a few days prior to the occurrence, there was a
wordy quarrel. Following the same, due to sustained provocation, he has acted
so, and under the circumstances, this legal aspect has got to be considered by
the Court.
5.The Court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made.
6.It is not a fact in controversy that one Vanitha the daughter of P.W.1
and the sister of P.Ws.2 and 3 was done to death in an incident that took place
at 1.30 P.M. on 23.10.2003. The dead body of Vanitha following the inquest made
by the Investigator, was subjected to postmortem by P.W.8, the Doctor, who has
also deposed before the Court. From his evidence, it is quite clear that she
died out of shock and haemorrhage due to the injuries sustained. Apart from
that, the postmortem certificate was also marked. The fact that Vanitha died
out of homicidal violence was never questioned by the appellant/accused at any
stage of the proceedings. Hence, it can be factually recorded so.
7.In order to substantiate the case of the prosecution that it was the
accused who attacked her and caused her death, the prosecution examined 3
witnesses namely P.Ws.1 to 3. It is true that they are all closely related to
the deceased. But, on that ground, their evidence cannot be discarded. Despite
the exercise of the careful scrutiny test, their evidence stood the test.
P.Ws.1 to 3 have spoken in one voice that on the date of occurrence at about
1.30 P.M., when they were standing outside the house and chatting, the accused
came with an aruval, and they heard the distressing cry of Vanitha who was just
running from her house, and she was being chased by the accused, and when
Vanitha fell down, immediately, the accused gave different blows with the aruval
indiscriminately and caused instantaneous death. Despite the cross-examination,
their evidence remained unshaken. All these witnesses have clearly spoken to
the fact clinchingly, and hence, their evidence has got to be accepted. That
apart, their evidence stood fully corroborated by the medical evidence, and the
Doctor has clearly found that there were 10 cut injuries all over the body, and
death occurred due to shock and haemorrhage due to the injuries sustained.
8.Apart from the above, in the instant case, yet another circumstance was
the recovery of the weapon of crime from the accused pursuant to his confession.
In order to substantiate this fact, the prosecution has brought forth sufficient
evidence. The trial Court has discussed the same and arrived at the conclusion
that it was the accused who cut her with the aruval and caused instantaneous
death. In view of the above, the contention put forth by the learned Counsel
for the appellant that there are discrepancies in the evidence of the
eyewitnesses cannot weigh much.
9.The other contention put forth by the learned Counsel for the appellant
that Ex.P1 could not have come into existence cannot be accepted for the simple
reason that if the occurrence has taken place at 1.30 P.M., and if the police
has already arrived and took the complaint, it would be advantageous to the
prosecution, and certainly it would not be disadvantageous. The prosecution
comes forward to state that it was reported to the police at about 6.00 P.M., as
spoken to by the author of Ex.P1, who is P.W.1, and also the Sub Inspector of
Police who has recorded the same. Hence, it leaves no doubt.
10.As far as P.Ws.1 to 3 are concerned, their evidence has got to be
accepted. The contention that they have been standing before the house, and
hence, they could not have seen the occurrence cannot be accepted for the reason
that when they found the deceased running with distressing cry, all the
witnesses have seen the accused chasing her, and when she fell down, taking
advantage of the same, he gave her blows with the aruval and caused her death
instantaneously.
11.Further, the contention put forth by the learned Counsel for the
appellant that he suspected the fidelity, and there was some provocation due to
the quarrel, and hence, he has cut her cannot be accepted for the simple reason
that at the time of occurrence, there was nothing to provoke the accused, and
even at the time, when he came to the house, he was armed with aruval and cut
her, which was witnessed by the witnesses. In such circumstances, the act of
the accused cannot, but be one of murder. Hence, the lower Court was perfectly
correct in recording a finding that it was a murder and awarded life
imprisonment, which does not call for interference.
12.In the result, this criminal appeal fails, and the same is dismissed
confirming the judgment of conviction and sentence passed by the lower Court.
nsv/
To
1.The Principal Sessions Judge
Srivilliputhur
2.Inspector of Police
Vathirairuppu Police Station
(Crime No.214 of 2003)
Virudhunagar District
3.The Additional Public Prosecutor
Madurai