BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21/04/2010
CORAM
THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM
and
THE HONOURABLE MR. JUSTICE T.MATHIVANAN
Criminal Appeal (MD) No.47 of 2009
Boopathi .. Appellant
vs
State by Inspector of Police,
Rajapalayam South Police Station,
Rajapalayam,
Virudhunagar District.
(Crime No.517/2006) .. Respondent
Criminal Appeal filed under Section 374 Cr.P.C against the Judgment of
conviction and sentence dated 13.2.2008 made in S.C.No.19 of 2007 on the file of
the Principal Sessions Judge, Virudhunagar District.
!For appellant ... Mr.K.Jeganathan
^For respondent ... Mr.Isaac Manuel
Addl.Public Prosecutor
:JUDGMENT
(Judgment of the Court was made
by M.CHOCKALINGAM,J)
Challenge is made to the judgment of the Principal Sessions Division,
Virudhunagar District dated 13.2.2008 made in S.C.No.19 of 2007 wherein the sole
accused/appellant stood charged for the offences under Sections 302 and 506 (2)
IPC and on trial, he was found guilty of charge of murder and sentenced to
undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to
undergo one year simple imprisonment, and the appellant was acquitted of the
charge under Section 506(2) IPC.,.
2. The short facts that are necessary for the disposal of this appeal can
be stated as follows:
(i) PW.1 is the father and PW.2 is the brother of the deceased. PW.1 was
living with all his family members. The house of one Periyasamy was situated
behind the house of PW.1. Drainage water from the house of PW.1 shall be taken
through the vacant site of the said Periyasamy, in respect of which, there was a
long standing quarrel between the family of PW.1 and Periyasamy. One Guruvammal
was the tenant of PW.1.
(ii) On 23.8.2006 in the morning hours, Guruvammal was removing drainage
water, which was passing through the site of Periyasamy. There arose a quarrel
between the deceased and accused/appellant and the deceased gave an assurance
that he would lay a pipe in order to remove the drainage water. However, the
accused/appellant made a vow that he would finish off the deceased. On the
very day at about 8.00 p.m., the accused/appellant came with an aruval and
attempted on the life of the deceased. PW.2 and others pacified him. On the
next morning at about 7.00 a.m., on 24.8.2006, PW.1, PW.2 and PW.3 went to
attend nature’s call. At that time, the deceased also came. There the
accused/appellant appeared with MO.5 and attacked the deceased on his buttock.
The deceased who fell down, woke up and tried to escape but the accused chased
him and attacked him on different parts of the body. PW.1 and PW.2 attempted to
rescue but the accused threatened them. As a result of the injuries sustained,
the deceased died on the spot. The accused run away from the place of
occurrence.
(iii) PW.1 accompanied with PW.2 went to the respondent police station.
The Sub-Inspector of Police, PW.17 was on duty at about 8.30 a.m., when PW.1
gave Ex.P.1 complaint and on the basis of which, a case came to be registered in
Crime No.517/2006 under Section 302 IPC. Ex.P.16 F.I.R was despatched to the
Court and to the higher officials.
(iv) On receipt of a copy of the F.I.R., on 24.8.2006 at about 9.00 a.m.,
PW.19, the Inspector of Police, attached to the respondent police station, took
up investigation and proceeded to the spot and made an inspection and prepared
an Observation Mahazar Ex.P.9 and a Rough Sketch Ex.P.18. He conducted inquest
on the dead body of the deceased in the presence of panchayatdars and prepared
an inquest report Ex.P.19 in their presence. Then, the dead body was sent for
the purpose of autopsy.
(v) PW.12 Doctor, attached to the Government Hospital, Rajapalayam,
conducted autopsy on the body of the deceased and issued post-mortem
Certificate Ex.P.4 wherein he has opined that the deceased would appear to have
died of shock and haemorrhage due to multiple injuries.
(vi) Pending investigation, the investigating officer arrested the
accused/appellant on 28.8.2006 at about 7.45 hours when he voluntarily came
forward to give a confessional statement in the presence of witnesses and the
admissible part of the same was marked as Ex.P.11. Pursuant to the confession,
the accused produced MO.5 Aruval, which was recovered under the cover of mahazar
Ex.P.12. MO.3 shirt and MO.4 Lungi were recovered from the accused/appellant.
Then, the accused was sent for judicial remand.
(vii) All the material objects recovered from the accused and also weapon
of the crime were subjected to chemical analysis, which resulted in two reports
viz., Chemical Analysis Report Ex.P.6 and Serological Report Ex.P.7.
(viii) On completion of the investigation, the investigating officer filed
a final report. The case was committed to the Court of Sessions. Necessary
charges were framed against the accused.
3. In order to substantiate the charges levelled against the accused, the
prosecution examined 20 witnesses and relied on 21 Exhibits and 12 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 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 in respect of the charge of murder and found the accused guilty of the
charge of murder. However, the trial Judge acquitted the accused under Section
506 (2)IPC.
4. Advancing arguments on behalf of the accused/appellant, the learned
counsel appearing for the appellant would submit that in the instant case, the
prosecution came with a story that the accused/appellant attacked the deceased
on 24.8.2006 in the morning hours and PW.1 and PW.2 were examined as eye-
witnesses, who are close relatives of the deceased, and there was a long pending
quarrel in the removal of drainage water and in the said circumstances, they had
a grudge and hence, they came forward to give false evidence against the
accused/appellant and the learned counsel pointing to the evidence would submit
that there was a lot of discrepancies on the material particulars and therefore,
coupled with the relationship of the witnesses to the deceased, the evidence
should have been rejected by the trial Court but the trial Court has miserably
failed to do so. Apart from that the evidence of these witnesses was never
corroborated by the medical evidence. The alleged recovery of MO.5 was nothing
but an introduction for the purpose of strengthening the prosecution case but in
vain. The learned counsel would submit that the prosecution has miserably
failed to prove its case beyond reasonable doubts.
5. The learned counsel for the appellant would add that even as per the
narration of the prosecution case on the previous night, there was a quarrel in
which the deceased had used filthy language not only against the
accused/appellant but also his family members, in particular his sister. Even
after his sister was pacified, she was weeping on the utterance and the same was
actually lingering in his mind and being provoked by the same, he had committed
the act of murder in the dawn of the next day. In the circumstances, it would
be clearly indicative of the fact that there was no intention to commit the
crime of murder. In the circumstances, the act of the accused/appellant would
only amount to culpable homicide not amounting to murder. This legal aspect has
got to be considered by the Court.
6. Heard learned Additional Public Prosecutor appearing for the State on
the above contentions.
7. The court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made and also
scrutinised the materials available.
8. It is not in controversy that one Rajesh Kannan was done to death in
the incident at about 7.30 a.m., on 24.8.2006 at the place as put-forth by the
prosecution. The dead body was subjected to post-mortem by PW.12. He gave
Post-Mortem Certificate Ex.P.4 wherein he has opined that the deceased would
appear to have died of shock and haemorrhage due to multiple injuries. The fact
of the death as put-forth by the prosecution was never disputed before the trial
Court or before this Court and hence, there is no impediment for the Court in
recording so.
9. In order to substantiate that it was the accused who attacked the
deceased with MO.5 Aruval and caused instantaneous death, the prosecution
examined PW.1 and PW.2 as eye-witnesses and they are closely related to the
deceased. It is well settled that merely because of the relationship of the
witnesses to the deceased, the evidence cannot be rejected but before acceptance
of such evidence, it must be subjected to careful scrutiny. Even
after the application of the test, the Court is satisfied that their evidence
has got to be accepted as their evidence inspires the confidence of the Court.
Hence, the trial Judge was perfectly correct in accepting their evidence. The
evidence of these witnesses was to the effect that there was quarrel on the
previous day in which the deceased uttered filthy language not only against the
accused but against his family members and there was exchange of words and they
were pacified. In the next morning, PW.1 and PW.2 went to attend nature’s call.
The accused came with the aruval and attacked the deceased and caused his death.
Despite the cross examination in full, the evidence of these witnesses remain
unshaken. That apart, the ocular testimony of PW.1 and PW.2 stood fully
corroborated by the medical evidence.
10. Yet another circumstance which is strong against the accused/appellant
was the recovery of MO.5, Aruval. When he was arrested, the same was recovered
by the Investigating Officer in the presence of the witnesses and the recovery
of the weapon Mo.5 Aruval pursuant to the confessional statement given by the
accused would be pointing to the nexus of the crime of the accused. In short,
it can be stated that the prosecution evidence is pointing to the guilt of the
accused. Now the contention put-forth by the learned counsel for the appellant
in the face of such evidence in the Court cannot be countenanced.
11. Insofar as the second line of argument is concerned, the Court is able
to see force in the contention of the learned counsel for the appellant. It is
not in controversy that drainage water of PW.1 was to pass through the house of
Periyasamy and that there was a long standing quarrel between him and the
deceased and on the previous day to the occurrence when the tenant of PW.1 was
removing and passing drainage water through the sites of Periyasamy, there arose
a quarrel and there was exchange of words between the deceased and the
appellant. The occurrence had taken place at about 8.00 p.m.,. At that
juncture, the deceased had not only spoken ill of the accused appellant but also
his family members and also touched the morality of the accused/appellant.
Therefore, all these were actually disturbing and perpetrating the
accused/appellant and in the next morning, the incident had taken place. Thus,
it is quite clear that it was due to provocation, which was made by the deceased
and that too the words which was spoken in filthy language against the
accused/appellant and against his family members and also in particular, his
sister, which was actually lingering in his mind. Under the circumstances, the
act of the accused cannot be termed as murder but culpable homicide not
amounting to murder. Hence, the act of the accused would fall under Section 304
(Part – I) IPC and awarding seven years of rigorous imprisonment would meet the
ends of justice.
12. Accordingly, the judgment of the trial Court is modified and the
conviction of the accused/appellant under Section 302 IPC is modified into one
under Section 304 (Part I) IPC and the sentence of life imprisonment is
substituted by seven years rigorous imprisonment. The imprisonment already
undergone by the accused/appellant is ordered to be given set off. The Criminal
Appeal is disposed of accordingly.
asvm
To
1.The Principal Sessions Judge,
Virudhunagar District.
2.Inspector of Police,
Rajapalayam South Police Station,
Rajapalayam,
Virudhunagar District.
(Crime No.517/2006)
3.The Additional Public Prosecutor,
Madurai Bench of Madras High court,
Madurai.