BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/01/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Appeal (MD) No.30 of 2006 Balan alias Balasubramani .. Appellant/ Accused Vs. The State,rep. by the Inspector of Police Thennilai Police Station Karur District. (Crime No.52/1998) .. Respondent/ Complainant Appeal under Section 374(2) of the Code of Criminal Procedure against the judgment, dated 20.06.2003, of the learned Principal Sessions Judge, Karur, in S.C.No.18 of 2003. !For Appellant ... Mr.C.Rajakumar ^For Respondent ... Mr.P.N.Pandithurai, Addl. Public Prosecutor. :JUDGMENT
(Delivered by M.CHOCKALINGAM,J)
Challenging the judgment of the Principal Sessions Judge,
Karur, in Sessions Case No.18/2003, the sole accused, who stood charged under
Sections 342 and 302 IPC and found guilty under Section 302 IPC and sentenced to
undergo life imprisonment and also to pay a fine of Rs.1,000/- with default
sentence thereunder, has brought forth this appeal.
2.The short facts necessary for the disposal of this appeal
can be stated thus.
(a)P.W.2 Thiruman and P.W.3 Palaniammal are the parents of the
deceased Natarajan and hey are residents of Kurukkathi Village within the
jurisdiction of the respondent police. P.W.13 Suresh is the friend of the
deceased, who also resides in the same village.
(b)On 16.08.1998, when P.W.1 Sabesan, Village Administrative Officer
of E.R.Puram, was in his office, one Kulanthaivel came to his Office of P.W.1
and informed him that a male dead body with severe injuries is found in his
field. On verification, P.W.1 went to Thennilai Police Station and gave a
report under Ex.P-1. On the strength of Ex.P-1, P.W.12, the Head Constable
attached to the said Police Station, registered a case in Crime No.52/1998 under
Section 302 IPC and prepared Ex.P-15, the First Information Report, and sent the
same to the Court through P.W.11 Head Constable. He gave information to the
Inspector of Police and desptached the copies of Ex.P-13 FIR to higher police
officials.
(c)P.W.14, the Inspector of Police, on receipt of information at
about 1.15 p.m. on 16.08.1998, proceeded to Thennilai Police Station, obtained a
copy of Ex.P-15 and took up the case for investigation. He visited the place
of occurrence, made an observation and prepared Ex.P-2, the Observation Mahazar
and also drew Ex.P-16, the Rough Sketch, in the presence of witnesses. At 2.15
p.m., in the presence of witnesses the Investigator recovered M.O.3 Lungi and
M.O.5 Shorts under Ex.P-4 mahazar. He also recovered M.O.1 bloodstained earth
and M.O.2 sample earth from the place of occurrence under Ex.P-3 mahazar. He
conducted inquest over the body of the deceased in the presence of panchayatdars
and witnesses and prepared Ex.P-17, the Inquest Report, and thereafter sent the
body for postmortem.
(d)During investigation, P.W.14, the Investigator, came to know the
deceased was the son P.Ws.2 and 3 and his name as Natarajan. Through P.Ws.2 and
3, the parents of the deceased, the Investigator came to know that on
15.08.1998 night the deceased went to watch Television in the village and did
not return.
(e)P.W.9, the Doctor Attached to Karur Government Hospital, on
receipt of requisition under Ex.P-12, conducted autopsy on the body of the
deceased and gave his postmortem report in Ex.P-13, where he narrated the
following injuries.
“1)An incised wound 1cm x 1/4cm x Skin deep over left cheek.
2)An incised wound 2cm x 1/4cm x Skin deep over right cheek.
3)An incised wound 10cm x 1/4cm x 1cm over the centre of Throat region.
4)A punctured wound 2cm x 1cm x 2cm over lower part of Throat.
5)Right thigh 1-1/2cm x 1/4cm x Skin deep wound (incided wound).
6)Right scapular region 1cm x 1/4cm x Skin deep incised wound.
7)Left scapular region 1cm x 1/4cm x Skin deep incised wound.
8)Back of Neck 1cm x 1/4cm x Skin deep incised wound.
9)Occipital region 2cm x 1cm x bone depth lacerated injury.
O/D Skull intact. Brain Pale and liquited. Hyoid bone Fracture present
Right side Fracture. Left side first 4 ribs. Heart empty & congested. Abdomen
bowels distended with gas Stomach 500 gms of undigested food particles. All
other internal organs congested.”
The doctor was of the opinion that the deceased would appear to have died of
shock and asphyxia due to throat injury about 36 hours to 40 hours prior to
autopsy.
(f)In continuation of his investigation, the Investigator came to
know through P.W.13 that this appellant/accused and two other accused were
involved in the incident. On the basis of the statement of P.W.13, the
Investigator arrested the appellant and the two other accused at 10.00 a.m. on
28.08.1998 and recorded the confessional statement of the respective accused in
the presence of witnesses. He sent P.W.13 to the Government Hospital for
treatment.
(g)Pursuant to the confessional statement of the appellant/accused,
admissible portion of which is marked as Ex.P-5, M.O.6, bloodstained shirt worn
by the deceased and M.O.7, bloodstained ‘soori’ knife, were recovered under Ex.-
6 mahazar. Investigator also recovered M.O.8, bloodstained Lungi, M.O.9,
bloodstained shirt and M.O.10, bloodsained aruval under Ex.P-18 mahazar from
accused Sekar. M.O.11 Shirt and M.O.11 Aruval were also recovered by the
Investigator under Ex.P-19 mahazar from the other accused Ashokumar.
Thereafter, the Investigator sent all the accused to the judicial remand. He
gave Ex.P-7 requisition to the Court to subject all the material objects for
chemical analysis and accordingly they were sent to Forensic Lab vide Court’s
Letter Ex.P-8. Ex.P-9, the Chemical Examiner’s Report, Ex.P-10, the
Serologist’s Report and Ex.P-11, the Biological Report, were received in the
Court. On completion of the investigation, P.W.14, the Investigator, filed the
final report and the same was taken on file by the Judicial Magistrate.
3.As one of the accused died pending committal and the case
pertaining to another accused was split up, the in respect of the
appellant/accused was committed to the Court of Sessions for trial. Necessary
charges were framed against the appellant/accused. To substantiate the charges
levelled against the appellant/accused, the prosecution examined as many as 14
witnesses as P.Ws.1 to 14, besides marking Exs.P-1 to P-21 and M.Os.1 to 14. On
completion of the evidence on the side of the prosecution, the accused/appellant
was questioned under Section 313 of the Code of Criminal Procedure about the
incriminating materials found against him in the evidence of prosecution
witnesses and the accused/appellant denied all of them as false. No witness was
examined on the side of the defence and also no document was marked. The trial
court heard the arguments advanced and on consideration of the evidence adduced,
found the accused/appellant guilty under Section 302 IPC and imposed life
imprisonment, however acquitted him of the charge under Section 342 IPC. Hence,
this appeal at the instance of the appellant.
4.Advancing his arguments on behalf of the appellant, the
learned counsel for the appellant would submit that in the instant case, the
prosecution has not proved its case at all. In short, according to him, except
the evidence of P.W.13, the alleged eye-witness, relied upon by the prosecution,
no other evidence or circumstances were available to the prosecution. In so far
as the evidence of P.W.13 is concerned, learned counsel for the appellant would
submit the evidence of P.W.13 is highly unbelievable and the lower court ought
not to have relied upon his evidence, but should have rejected the same.
Learned counsel added further that when the occurrence is said to have taken
place on 15.08.1998, P.W.13 had informed the police about the occurrence only
on 28.08.1998, i.e. after a lapse of nearly 12 or 13 days and therefore it is
highly unbelievable that P.W.13 had accompanied the deceased and witnessed the
incident. He further submitted that had it been true, P.W.13 could have
immediately informed the same either to others or to the police, but he has not
done so and thus, in would be indicative of the fact that P.W.13 could not be an
eye-witness and could not have seen the occurrence, but still the prosecution
relied upon his evidence and the lower court has also accepted the same. He
would further submit that it is the case of the prosecution that some injuries
were sustained by P.W.13 in the incident and had it been true, P.W.13 would have
taken treatment but he has not done so and he kept quiet nearly for a period of
13 days. and therefore the delay on the part of P.W.13 in informing the police
would be sufficient to reject his evidence. Apart from this, learned counsel
would add that so far as the evidence in respect of recovery part is concerned,
it is highly unbelievable. In such circumstances, the prosecution has no
evidence at all but the lower court believed the evidence of P.W.13 and found
the appellant guilty and hence the appellant has got to be acquitted.
5.Learned counsel for the appellant would further submit that
if the court is of the opinion that the prosecution has proved its case as to
the factual position, the act of the appellant/accused would not attract the
penal provision of murder, but it would attract Exception No.4 to Section 300
IPC. As per the prosecution, there was a quarrel at the time of occurrence as
the deceased refused to pay the amount demanded by the accused, in which, due to
sudden provocation the appellant/accused attacked the deceased spontaneously
without any intention or pre-meditation to cause the death of the deceased and
this aspect of the case has got to be considered by this Court.
6.The Court heard the learned Additional Public Prosecutor for
the State on the above contentions and paid anxious consideration on the
submissions made.
7.The case of the prosecution, as could be seen, is that the
occurrence has taken place on 15.08.1998 when the appellant and two other
accused were standing in the occurrence place with two ladies for the purpose of
doing immoral activities and at that time the deceased and the other person
(P.W.13) approached them and when the accused persons demanded money, there was
some quarrel between the accused and the deceased and in which all the accused
attacked the deceased.
8.From the evidence available, it could be seen that P.W.13
was the only eye-witness to the occurrence. Merely because the prosecution had
only one witness to prove its case, it is not necessary that his evidence should
be rejected or to be taken to be unbelievable. In the instant case, according
to P.W.13, he, along with the deceased, went over to the place where the accused
persons and two ladies were standing and they were asking for the ladies for
immoral purpose and there was a quarrel between them when demand of money was
made by the accused and in that quarrel, the appellant/accused, along with other
two accused, attacked the deceased and one of the accused, who was not before
the Court, has also attacked him and he sustained injuries. Immediately after
the occurrence was over, due to fear P.W.13 fled away from the scene and came
back to the village and informed the police on 28.08.1998. It is not a matter
of surprise that a person, like P.W.13, who actually involved in such activities
and also sustained injuries, due to fear of police would have fled away from
the scene place and, therefore, merely because he has fled away from the
village, it cannot be taken that the entire prosecution case is false and could
not be believed. P.W.13 was categoric in the narration of events.
9.The added circumstance is the recovery of M.O.7, Soori
Knife, from the appellant/accused, with which he stabbed the deceased and the
same was subjected to chemical analysis. In so far as the evidence of witnesses
in respect of confession and recovery of weapons of crime, it remains intact.
Under such circumstances, with this evidence, coupled with the evidence of of
eye-witness to the occurrence, the Court has to necessarily accept the case of
the prosecution that this appellant/accused was involved in the occurrence in
which the deceased was done to death. Even from the medical evidence, the
injury found on the neck of the deceased was fatal and that it has caused his
death and the same has been caused by the appellant herein . Hence when it was
the injury that caused the death of the deceased, without any hesitation, on the
evidence and material available, the Court has to necessarily hold that it was
the appellant/accused who caused the death of the deceased.
10.Coming to the question about the nature of the act of the
appellant/accused is concerned, the Court is able to see force in the
contention put-forth by the learned counsel for the appellant. In the instant
case, even as per the evidence of P.W.13, he, along with his friend, the
deceased, approached the appellant/accused who was in the company of two other
accused as they were involved in immoral activities with two ladies and there
was a demand for money by the accused and this was questioned by the deceased
and therefore on hearing this, there was some quarrel and there ensued
provocation and in that due to sudden provocation the accused attacked the
deceased. Hence, it cannot be said that the appellant/accused, either with
pre-meditation or intention to cause death, attacked the deceased. Therefore,
the attendant circumstances would attract the penal provision of Section 304(i)
IPC and awarding seven years rigorous imprisonment thereunder would be
sufficient.
11.Accordingly, the the judgment of the trial court convicting
the appellant/accused under Section 302 IPC and sentencing to undergo life
imprisonment is modified as one under Section 304(i) IPC and seven years
rigorous imprisonment is imposed on the appellant/accused. The sentence already
undergone by the appellant/accused shall be given set off.
12.With the above modification in the conviction and sentence,
the appeal is dismissed.
To:
1. The Principal Sessions Judge
Karur District, Karur.
2. The Inspector of Police
Thennilai Police Station
Karur District.
3. The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai.
gb