BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :03/03/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.A.(MD)No.37 of 2001 Elango .. Appellant Vs. The State Through Inspector of Police, Rajapalayam South Police Station, (Crime No.215/1999) Virudhunagar District. .. Respondent PRAYER This criminal appeal has been preferred under Section 374 Cr.P.C against the judgment dated 28.09.2000 made in S.C.No.80 of 2000 by the Principal Sessions Judge, Virudhunagar, Srivilliputhur. !For Appellant ... Mr.K.Jegannathan ^For Respondent ... Mr.Senthur Pandian, Additional Public Prosecutor :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
Challenge is made to the judgment of the learned Principal Sessions Judge,
Virudhunagar at Srivilliputhur made in S.C.NO.80 of 2000, whereby the sole
accused/appellant stood charged under Section 302 IPC, tried and found guilty as
per the charge and awarded life imprisonment.
2. The short facts necessary for the disposal of the appeal could be
stated thus:-
a)P.Ws.1,2,3 and the deceased all belonged to Tiruvulluvar Nagar Weavers’
Colony. They belonged to Hindu Community. The accused belonged to Christian
Community. Both these communities had difference of opinion and also quarrel
over the construction of a temple in a public place. On 25.04.1999, P.Ws.2 and
3 were chatting in front of their house. The brother of the accused was
proceeding on that way. It was passing in his mind that those ladies were
teasing him and he informed the same to the accused. Immediately, the accused
proceeded to the house of P.W.3 and asked P.W.3 “why you were teasing my
brother?”. At that time, there was exchange of filthy language. At about 7.00
p.m, P.Ws.1,2 and 3 telling the deceased “why you should not ask the other party
in respect of teasing?”. At that time, the accused was actually coming on the
way. There was a wordy altercation and scuffle between the accused and the
deceased. In that process, the deceased assaulted the accused. Thereafter, the
deceased was proceeding to his house. At that time, the accused immediately took
an aruval, followed the deceased and uttered “you have assaulted me, so you
die”. So telling, he attacked him with the aruval on the different parts of the
body. Immediately, he ran away from the place of occurrence.
b)The deceased was taken to the Government Hospital, Rajapalayam, where
P.W.5, the doctor, who was on duty, medically treated the severely injured and
issued accident register, Ex.P.2. On receipt of the intimation, P.W.9, the Sub
Inspector of Police of the respondent police, proceeded to the Government
Hospital, where he found the injured Venkatachalapathy not in a condition to
speak. Then, he recorded the statement of P.W.1, which was marked as Ex.P.1. On
the strength of the same, he registered a case in Crime No.215 of 1999 under
Section 307 IPC. Ex.P.10, the printed F.I.R., was sent to the concerned Judicial
Magistrate’s Court. The injured Venkatachalapathy was referred to Madurai Rajaji
Government Hospital for further treatment.
c)On receipt of the copy of F.I.R., P.W.10, the Inspector of Police, took
up the investigation, proceeded to the place of occurrence, made an inspection
in the presence of witnesses and prepared Ex.P.5, the Observation mahazar, and
Ex.P.11, the rough sketch. Further, he recovered the blood stained earth, M.O.2
and sample earth M.O.3, from the place of occurrence under a cover of mahazar.
On receipt of the intimation that the injured died on the way, when he was taken
to the Madurai Rajaji Government Hospital, P.W.10 altered the case to Section
302 IPC. Ex.P.12, the altered F.I.R. was despatched to the court. He proceeded
to the hospital and conducted inquest on the dead body of the deceased in the
presence of witnesses and panchayatdars and prepared Ex.P.13, the inquest
report.
d)The dead body of the deceased was sent to the hospital for the purpose
of autopsy. P.W.7, the Doctor attached to the Madurai Medical College, on
receipt of the requisition, conducted autopsy on the dead body of the deceased
and has issued Ex.P.4, the post-mortem certificate, wherein he has opined that
the deceased would appear to have died out of shock and hemorrhage due to the
injuries sustained.
e)Pending investigation, the Investigator arrested the accused on
27.04.1999 and he gave a confessional statement voluntarily and the same was
recorded in the presence of the witnesses, the admissible part of which was
marked as Ex.P.7. Pursuant to the same, he produced M.O.1, aruval, M.O.4, shirt
and M.O.5, lungi, which were recovered under a cover of Exs.P.8 & 9
respectively. The accused was sent for judicial remand. All the material objects
recovered from the place of occurrence, from the dead body of the deceased and
also from the accused, were sent for chemical analysis pursuant to a
requisition, Ex.P.14, given by the Investigating Officer to the concerned
Judicial Magistrate. Ex.P.16, the Chemical analyst’s report and Ex.P.17, the
Serologist’s report, were received. On completion of the investigation, the
Investigating Officer filed the final report before the concerned court.
3.The case was committed to the court of sessions and necessary charges
were framed. In order to substantiate the charges, at the time of trial, the
prosecution examined 11 witnesses and relied on 17 exhibits and 7 M.Os. On
completion of the evidence on the side of the prosecution, the accused was
questioned under Section 313 Cr.P.C. as to the incriminating circumstances found
in the evidence of prosecution witnesses. He denied them as false. No defence
witness was examined. After hearing the arguments advanced and scrutinizing the
materials available, the lower court took the view that the prosecution has
proved the case beyond reasonable doubt, found him guilty and awarded the
punishment as referred to above, which is the subject of challenge before this
Court.
4.Advancing arguments on behalf of the appellant, Mr.K.Jegannathan, the
learned counsel, inter-alia, would submit that the prosecution has examined
P.W.1, as eyewitness; that P.W.1 is the only eyewitness and P.W.2 saw the
accused/appellant running away from the place of occurrence; that even as per
the prosecution case, both the accused/appellant and the P.Ws belonged to two
different communities and they have got strained relationship in the past; that
even on the date of occurrence, there was exchange of filthy language between
them and thus, a case has been foisted against the accused/appellant; that the
witnesses have spoken false; that the ocular testimony projected through these
witnesses did not support the medical evidence; that the arrest, confessional
statement and the recovery of M.Os from the accused, were all nothing, but
subsequent introduction to support the prosecution case; that the evidence
adduced in that regard was shaky and hence the evidence should not have been
relied on by the lower Court. Thus, all put together would go to show that the
prosecution has not proved the case beyond reasonable doubt.
5.Added further the learned counsel that in the instant case, even as per
the prosecution case, there was a wordy altercation between the
accused/appellant and the deceased, in which the deceased assaulted the
accused/appellant and thereafter, the deceased was proceeding to his house; that
due to the sudden quarrel and on being provoked by the deceased, the accused
took an aruval and cut him; that this was spoken to by the witnesses examined by
the prosecution; that the confessional statement, which was recorded by the
Investigator from the accused/appellant and relied on by the prosecution and
pointed out by the lower Court in the judgment, would also support the same and
that the act of the accused would not attract the penal provision of murder and
under these circumstances, this legal aspect of the matter has got to be
considered by this Court.
6.The court heard the learned Additional Public Prosecutor on the above
contentions and has paid its anxious consideration on the submissions made and
also scrutinized the materials available.
7.By adducing sufficient evidence through the medical person, who
conducted autopsy on the dead body of deceased and has also issued Ex.P.4, the
post-mortem certificate, the prosecution has proved that the deceased died out
of homicidal violence. This fact was also never questioned by the appellant at
any stage of proceedings. Hence, without any impediment whatsoever, it could be
safely recorded so.
8.In order to substantiate the fact that it was the accused who caused
the death of the deceased by attacking him with M.O.1, aruval, the prosecution
to its advantages had the evidence of two witnesses. P.W.1 is the witness who
has actually seen the entire occurrence and it was P.W.2 who found the
accused/appellant running from the place of occurrence with bloodstained aruval.
The evidence of P.W.1, despite cross-examination in full, remained unshaken.
The evidence of P.W.1 stood fully corroborated by the evidence of P.W.2 to an
extent that it was the accused who participated in the crime. This ocular
testimony stood fully corroborated by the medical evidence, which was projected
by the prosecution through the examination of P.W.7, the Doctor, who has
conducted post-mortem.
9.Apart from that, yet another circumstance against the accused/appellant,
which, in the opinion of the Court, was strong, was the recovery of M.O.1,
aruval, the weapon of crime and the other material objects from the accused,
pursuant to the confessional statement given by him and sufficient evidence was
also adduced by the prosecution in that regard. All put together would go to
show that there was overwhelming evidence, pointing out the fact that it was the
accused who cut the deceased with aruval and caused his death. Hence the court
is disagreed with the contentions put forth by the learned counsel for the
appellant in this regard.
10.So far as the second line of argument is concerned, the court is able
to see force in the contentions put forth by the learned counsel for the
appellant. The occurrence has taken place at about 7.00 p.m on 25.04.1999. Even
as per the evidence of the eye witnesses, there was a wordy altercation between
the accused/appellant and the deceased in respect of the complaint as to
teasing. At that time, the accused/appellant was assaulted by the deceased and
after that incident, the deceased was proceeding towards his house. Within a few
minutes, the accused, following the quarrel and sudden provocation, took the
aruval, followed the deceased and attacked him and as a direct consequence, the
deceased died. Thus, from the evidence adduced by the prosecution, it would be
quite clear that the act of the accused was neither intentional nor preplanned,
but due to the sudden provocation, he has acted so. Hence, it must come under
Exception 4 to Section 300 IPC. Therefore, the act of the accused would attract
the penal provision of Section 304(I) IPC and awarding a punishment of seven
years R.I. would meet the ends of justice.
11.Accordingly, the conviction and sentence awarded under Section 302 IPC
are set aside and instead, the accused/appellant is convicted under Section
304(I) IPC and sentenced to undergo seven years R.I. The period of sentence
undergone by the accused/appellant shall be given set off. It is reported that
the accused/appellant is on bail. Hence, the concerned Judicial Magistrate
shall take necessary steps to secure and commit him to prison to undergo the
remaing period of sentence.
With the above modification the conviction and sentence, the appeal is
dismissed.
ssm
To
1.The Principal Sessions,
Virudhu Nagar, Srivilliputhur.
2.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.