BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/02/2007 CORAM: THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR.JUSTICE G.RAJASURIA Criminal Appeal (MD) No.448 of 2004 Esakkimuthu, S/o.Shanmugavel ... Appellant/Accused Vs State, rep. by the Inspector of Police, Alangulam Police Station, Alangulam. Crime No.301 of 2001 ... Respondent/ Complainant Appeal under Section 374 of the Code of Criminal Procedure against the judgment, dated 18.08.2003, of the learned Principal Sessions Judge, Tirunelveli, in S.C.No.77 of 2002. !For Appellant ... Mr.A.Kajamohideen ^For Respondent ... Mr.N.Senthurpandian, Addl.Public Prosecutor. :J U D G M E N T
(Judgment of the Court was delivered by M.CHOCKALINGAM,J)
This appeal is directed against the judgment of the learned
Principal Sessions Judge, Tirunelveli Division, dated 18.08.2003 in S.C.No.77 of
2002, whereby the sole accused/appellant stood charged, tried and found guilty
as per the charge of murder and awarded the life imprisonment and also to pay a
fine of Rs.2000/-, in default to undergo six months rigorous imprisonment.
2.The short facts necessary, sans unnecessary facts, for the
disposal of the appeal can be stated thus:
(a)P.W.1 Vellammal is the wife of the deceased and P.W.2
Karpagavalli is their foster daughter. P.W.6 Sermakkani is the mother of P.W.2.
P.W.9 Sudalaimuthu is the brother of the deceased. They are all residents of
Karuvanallur. The accused/appellant also belongs to the same place.
(b)One year prior to the occurrence, the deceased Chellaiah borrowed
a sum of Rs.1,000/- from the accused on interest, but it was not repaid even
after many demand by the accused. There was a dispute over the rate of interest
between the accused and the deceased. At one point of time, the deceased made
an attempt to repay the said amount through P.W.9, but the accused was not ready
to receive the same. The accused was adumbrating that his father died due to
the invocation of supernatural elements by the deceased and he was challenging
that he would finish him off.
(c)On 13.07.2001, at about 9.00 p.m. in the night, P.W.1, P.W.2 and
the deceased went to witness the programmes in the television set belonged to
the panchayat. While P.Ws.1 and 2 were witnessing, the deceased came back early
in order to go to his work in the morning. Both P.Ws.1 and 2 were returning
home at about 00.30 a.m. in the night and at that time the electric light in
the verandah was burning. They saw the accused, armed with an aruval, actually
attacking the deceased who was lying in the cot put on the verandah and on
seeing them, the accused left the place of occurrence. When they went near the
deceased, they found him dead. Thereafter, both P.W.1 and P.W.2 went to
Seethaparpanallur Police Station, which is an Outpost Police Station attached
to Alangulam Police Station, where P.W.1 narrated about the occurrence happened
in her house to P.W.11, the Sub-Inspector of Police, at 1.00 a.m. on 14.07.2001,
who in turn recorded the same and obtained the signature of P.W.1 in it after
read it over to her.
(d)On the strength of Ex.P-1, the complaint, P.W.11 at 2.30 a.m. on
14.07.2001 registered a case in Crime No.301/2001 under Section 302 IPC and
prepared Ex.P-7 Express FIR. He despatched the same to the Court through P.W.12
Head Constable and the same was handed over to the Judicial Magistrate at 5.30
a.m. by P.W.12. Ex.P-8 is the passport given to P.W.12. A copy of the FIR was
sent to the Inspector of Police, Pavoorchathithram, who was in-charge of
Alangulam Police Station also, for investigation.
(e)P.W.15, the Inspector of Police, on receipt of copy of Ex.P-7
FIR, took up the investigation, proceeded to the scene of occurrence, made an
observation and prepared Ex.P-2, the observation mahazar, in the presence of
P.W.7 and another. He also drew Ex.P-15, the rough sketch. He conducted
inquest over the dead body of Chelliah between 4.00 and 7.00 a.m. in the
presence of Panchayatdars. Ex.P-16 is the inquest report prepared by him. He
enquired P.W.1 and recorded her statement. Thereafter, he sent the body for
postmortem to the Government Hospital through P.W.13 Constable with Ex.P-4
requisition. He recovered M.O.2 bloodstained cement mortar, M.O.3 sample cement
mortar and M.O.7 Iron cot under Ex.P-3 mahazar attested by witnesses. He
examined P.Ws.2 to 7, P.W.8 and others and recorded their statements.
(f)P.W.8, the Doctor attached to Tirunelveli Medical College
Hospital, conducted autopsy on the body of the deceased at 10.30 a.m. on
14.07.2001 and gave Ex.P-5 Postmortem Certificate opining that the deceased
would appear to have died of shock and haemorrhage due to multiple heavy cut
injuries. After postmortem, P.W.13 recovered M.Os.4 to 7, personal wearing
apparels of the deceased, from the body and handed over the same in the police
station.
(g)Pending investigation, P.W.15, the Inspector of Police, arrested
the accused at 9.00 p.m. on the same day in the presence of P.W.10 and another.
When enquired, the accused voluntarily gave a confessional statement, admissible
portion of it is marked as Ex.P-17, pursuant to which the accused produced M.O.1
aruval and the same was recovered under Ex.P-6 mahazar attested by witnesses.
Thereafter, he sent the accused to the judicial remand and also sent the
material objects to the Court.
(h)On 17.07.2001, P.W.15, the Inspector of Police, gave Ex.P-10, the
requisition, to the Magistrate to subject the material objects recovered from
the place of occurrence, from the body of the deceased and pursuant to the
confessional statement of the accused to chemical analysis by the Forensic
Department, which resulted in two reports, namely Ex.P-12, the Chemical
Examiner’s Report and Ex.P-14, the Serologist’s Report which were received in
the Court. Ex.P-10 is the letter of the Court to the Forensic Department.
Since P.W.15 was transferred, P.W.16 took up the further investigation in the
case. On completion of investigation, P.W.16, the Inspector of Police, filed the
final report in the case against the accused under Section 302 IPC on
30.08.2001.
3.The case was committed to the Court of Session and necessary
charge was framed. To substantiate the charge levelled against the accused, the
prosecution marched 16 witnesses as P.Ws.1 to 16 and relied on Exs.P-1 to P-17
as well as M.Os.1 to 7. On the completion of the evidence on the side of the
prosecution, the accused was questioned under Section 313 of the Code of
Criminal Procedure as to the incriminating circumstances found. The accused
denied them as false. No witness was examined on the side of the defence. The
trial court heard the arguments advanced on either side and took the view that
the the prosecution has proved its case beyond reasonable doubt and found the
accused/appellant guilty under Section 302 IPC and awarded the life
imprisonment. Hence the appeal has arisen before this Court.
4.Advancing his arguments on behalf of the appellant, the learned
counsel would submit that in the instant case, according to the prosecution,
P.Ws.1 and 2 were the eye-witnesses, but they could not have seen the occurrence
at all. He further submitted that P.Ws.1 and 2 are the close relatives of the
deceased, being the wife and foster daughter and according to them, the
occurrence had taken place at about 00.30 a.m. on 14.07.2001, but the occurrence
could not have taken place at all at that time, in view of the medical opinion
canvassed by the prosecution. It is the further submission of the learned
counsel, according to the postmortem Doctor P.W.8, after sustaining the injuries
found on his body, the deceased would have lived 5 to 10 minutes, but according
to P.Ws.1 and 2 when they went near the deceased they found him dead. Learned
counsel would further add that according to P.W.1 all of them took food by 7.00
p.m. on 13.07.2001 and according to the postmortem Doctor the stomach contained
400 grams of cooked rice particles in early phase of digestion and he would
further state that the occurrence would have taken place one or one and half-an-
hour from the time of consumption of the food and if it is so, the occurrence
could not have taken place at 00.30 a.m. on 14.07.2001 as put-forth by P.Ws.1
and 2 and thus they could not have seen the occurrence at all and hence the
evidence of P.Ws.1 and 2 has got to be rejected.
5.Learned counsel for the appellant would further add that in the
instant case, it is highly doubtful whether P.Ws.1 and 2 proceeded to the
outpost police station and could have given the report at 1.00 a.m. on
14.01.2001, for the reason that when there were number of relatives, the theory
of P.Ws.1 and 2, who were the women folks, went over the police station situated
four kilometres away from the scene of occurrence alone was highly improper and
unbelievable. Apart from this, in the instant case, five injuries were noticed
by the postmortem doctor and it is also mentioned in the postmortem certificate
Ex.P-5, but P.Ws.1 and 2 could not give proper account for that injuries found
on the body of the deceased and if that be so, it would also add that P.Ws.1 and
2 could not have seen the occurrence at all. Further, in the instant case, the
prosecution placed reliance and the lower court also accepted the so-called
theory of the so-called arrest of the accused at 9.00 p.m. on 14.07.2001, and
the alleged confessional statement made by the accused and also recovery of the
weapon M.O.1 Aruval, but P.W.1 has categorically admitted that at 4.00 a.m. on
14.07.2001 the accused was brought to the police station and if that be so, all
these alleged voluntary confession and recovery of weapon are all nothing but
planted for the purpose of prosecution case and hence it could not be accepted.
Added further the learned counsel submitted that in the instant case, so many
discrepancies were found and despite the same, the lower court, without
considering the factual position, had taken an erroneous view that the accused
has committed the offence and therefore the appellant is entitled for an
acquittal in the hands of this Court.
6.The Court heard the learned Additional Public Prosecutor appearing
for the State on the above contentions.
7.The Court paid its anxious consideration to the submissions made
on either side and also made a thorough scrutiny of the available materials.
8.It is not the fact in controversy that one Chelliah, the husband
of P.W.1, was done to death in an occurrence that took place at the time and
place as put-forth by the prosecution. In order to appreciate the fact that
the deceased died due to homicidal violence, the prosecution has marched the
evidence of medical person as a witness and he has also issued a certificate,
marked as Ex.P-5 opining that the deceased would have died out of shock and
haemorrhage due to multiple heavy injuries. This fact that the deceased died due
to homicidal violence was never called in question by the accused either before
the trial court or before this Court. Therefore, it can be safely concluded
that the deceased died out of homicidal violence.
9.In order to substantiate its case, the prosecution relied on the
direct evidence by marching P.Ws.1 and 2, who are the wife and foster daughter
of the deceased, respectively. The Court is mindful of the caution of the
settled principle of law that in a given case like this where the eye-witnesses
to the occurrence are close relatives of the deceased, without exercising the
test of careful scrutiny, their evidence should not be accepted. Despite the
exercise of the said test, the Court is satisfied that the evidence of P.Ws.1
and 2 has got to be accepted. P.Ws.1 and 2 have, in one voice, categorically
spoken that all of them, including the deceased, were witnessing the programme
in the television set in the panchayat and the deceased left for home early and
they came back at 00.30 a.m. on 14.07.2001 and at that time the electric light
in the verandah was burning and they found the accused armed with an aruval and
also actually witnessed the occurrence in which the accused cut the deceased who
was lying the cot and on seeing them the accused left the occurrence place. It
is their further evidence that when they went near Chelliah they found him dead.
10.In the instant case, it is the the contention put-forth by the
learned counsel for the appellant that in view of the medical evidence the
evidence of the ocular testimony cannot be accepted. It is the well settled
proposition of law that when there is a conflict between the evidence of ocular
witnesses and the medical opinion, the ocular testimony must prevail. In the
instant case, the medical opinion, in the opinion of the Court, is also not in
support of the defence plea. The medical opinion of P.W.8, the postmortem
doctor, that the person who sustained those injuries noticed in Ex.P-5 would
have lived for 5 to 10 minutes from the time of sustaining injuries cannot be a
reason to reject the testimony of P.Ws.1 and 2. According to P.Ws.1 and 2, when
they returned home from panchayat building they found the accused, armed with an
aruval, cutting the deceased who was lying on the cot and when they came near
the deceased they found him dead. Thus it is clear that it was the
accused/appellant who cut the deceased with aruval.
11.The another circumstance pointed out by the learned counsel for
the petitioner is that according to P.W.1, they had their dinner at 7.00 p.m.
and according to the medical evidence the occurrence should have been taken
place one or one and half-an-hour from the time of consumption of the food and
hence the actual occurrence should be much earlier to 00.30 a.m. and in such
circumstances there is no bona fide reason to believe the version of P.Ws.1 and
2 that the occurrence has taken place at about 12.00 in the midnight or 00.30
a.m. In the instant case, the strong circumstance, according to the
prosecution, is that the occurrence took place at 00.30 a.m.; immediately P.Ws.1
and 2 rushed to the Alangulam Outpost Police Station, which is at a distance of
four kilometres away from the scene of occurrence, and narrated the occurrence
to P.W.11, the Sub-Inspector of Police, at about 1.00 a.m., which was reduced
into writing by P.W.11, and based on the strength of the said complaint Ex.P-
1, P.W.11 registered a case at 2.30 a.m. and prepared the Express FIR and the
FIR reached the Magistrate at 5.30 a.m. This would go to show that a genuine
case was placed before the police and a case came to be registered immediately
and this fact reached the Magistrate within a short span of time. Therefore,
the contention of the learned counsel in respect of the time of occurrence has
got to be rejected.
12.It is true, as rightly pointed out by the learned counsel for the
petitioner, that P.W.1 has admitted in her evidence that the accused was brought
to the police station at 4.00 a.m. on 14.07.2001. If that be so, the arrest of
the accused at 9.00 p.m. on 14.07.2001, the confession statement alleged to have
been made by the accused and the consequent recovery of the weapon have got to
be rejected. Even the rejection of that part of the prosecution case, will not
in any way would help the accused/appellant.
13.In the instant case, the prosecution by direct evidence, by
examining eye-witnesses P.Ws.1 and 2, which is corroborated by medical evidence,
has brought home the guilt of the accused leaving no doubt at all in the mind of
the Court. Apart from this, in the instant case, the occurrence has taken place
in front of the house of the deceased at 00.30 a.m. and the appellant/accused,
armed with an aruval, came to the spot and done the deceased to death by cutting
him with aruval and this would be indicative of the fact that it is a pre-
planned intention to cause the death and this act would fall within the ambit of
murder and as one require a sentence of life imprisonment under Section 302 IPC,
which has been rightly done by the trial Court and this Court finds no reason to
interfere either with the conviction or the sentence awarded by the trial court.
14.Hence the appeal fails and the same is dismissed and the
conviction and sentence imposed on the appellant/accused by the trial court is
hereby confirmed.
To:
1.The Principal Sessions Judge,
Tirunelveli District,
Tirunelveli.
2.The Inspector of Police,
Alangulam Police Station,
Tirunelveli District.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.