BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/07/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY Crl.A.(MD) No.97 of 2010 Jothilingam .. Appellant Vs State of Tamil Nadu, Through The Inspector of Police, Aralvaimozhy Post, Kanyakumari District. (Crime No.60/2005) .. Respondent This criminal appeal has been preferred under Section 374(2) of Cr.P.C. against the conviction and sentence of life imprisonment with fine and default sentence for the offence under Section 302 I.P.C. and one month Simple Imprisonment for the offence under Section 341 I.P.C. and two years Rigorous Imprisonment for the offence under Section 506(i) I.P.C., imposed on the appellant/accused by the learned Sessions Judge, Kanyakumari Division @ Nagercoil, made in S.C.No.18 of 2006, dated 25.01.2010. !For Appellant ... Mr.Murugappan for Mr.C.Raja Kumar ^For Respondent ... Mr.P.N.Pandi Durai Additional Public Prosecutor :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
Challenge is made to a Judgment of the Court of Sessions Division,
Kanyakumari at Nagercoil, made in S.C.No.18 of 2006, dated 25.01.2010, whereby
the appellant/accused stood charged under Sections 341, 302 and 506(ii) I.P.C.,
tried and found guilty under Section 302 I.P.C. and awarded life imprisonment
along with fine and default sentence and found guilty under Section 341 I.P.C.
and awarded one month Simple Imprisonment and also found guilty under Section
506(i) I.P.C. and awarded two years Rigorous Imprisonment.
2.The short facts necessary for the disposal of the prosecution case can
be stated as follows:-
a) The deceased was employed in the brick kiln of P.W.7 as a Supervisor.
The accused was also working in the same brick kiln and the deceased was to give
Rs.1,500/- to the accused/appellant towards salary. For the past several months,
so many demands were made by the accused/appellant. The deceased was go on
giving evasive answers. On the date of occurrence, i.e., on 27.02.2005, at about
2.00 p.m., when the deceased was in the house of his father-in-law, the accused
went over there and made a demand and this was found to be shameful to the
deceased. Thereafter, the deceased refused to pay the said amount and the
accused/appellant made a challenge and went outside.
b) On 17.02.2005, at 8.00 p.m., when P.W.1, the brother of the deceased
accompanied him and both of them were walking on the northern side of the
Thovalai Channel situated on the south side of the Brick chamber, the
accused/appellant came there and demanded the dues. The deceased refused to
make the payment. Immediately, the accused took a Vettaruval hidden inside his
shirt and attacked the deceased on the right side of the neck, and the deceased
fell down. Then, not satisfied, the accused kicked him and pushed him in the
nearby channel. Then, P.W.1 raised alarm, and the accused threatened to kill
P.W.1 and when P.W.1 was running, he was chased by him with the weapon.
Thereafter, the accused fled away from the place of occurrence. Subsequently,
P.W.1 returned to the scene of occurrence along with others and found his
brother dead.
c) Then, P.W.1 proceeded to the respondent police station, where P.W.12,
the Head Constable was on duty. P.W.12 recorded the statement of P.W.1 as
Ex.P.1. On the strength of the complaint Ex.P.1, a case came to be registered in
Crime No.60 of 2005 under Sections 341 and 302 IPC and the express First
Information Report, Ex.P10 was despatched to the Court.
d) On receipt of the copy of the F.I.R., P.W.14, Inspector of Police of
the Circle, took up investigation, proceeded to the place of occurrence, made an
inspection in the presence of two witnesses and prepared Ex.P.2, the observation
mahazar and also Ex.P.11, the rough sketch and also recovered M.Os.5 and 6,
bloodstained earth and sample earth respectively, from the place of occurrence
under a cover of Mahazar Ex.P.3. Then, he examined the witnesses and recorded
their statements. He conducted inquest on the dead body of the deceased in the
presence of the witnesses and panchayatdars and prepared Ex.P.12, the inquest
report.
e) Then, the dead body of the deceased was sent to the hospital, for the
purpose of autopsy. P.W.10, the Doctor, attached to Kanniyakumari Government
Medical College Hospital, on receipt of the requisition, has conducted autopsy
on the dead body of the deceased and issued Ex.P.8, the post-mortem certificate,
wherein he has narrated the injuries and has opined that the deceased would
appear to have died of shock and haemorrhage due to cut injuries in the neck.
f) Pending investigation, on 19.02.2005 at 12.00 hours, the Investigator
arrested the accused in the presence of the witnesses and he gave a confessional
statement voluntarily and the same was recorded. The admissible part of the
confessional statement was marked as Ex.P.13, and he also produced M.O.1,
bloodstained Vettaruval, and the same were recovered under a cover of mahazar
Ex.P.14. Then, the accused was sent for judicial remand.
g) The material objects recovered from the place of occurrence, from the
dead body of the deceased and from the accused were subjected to chemical
analysis by the forensic department on a requisition made by the Investigating
Officer through the concerned Judicial Magistrate. Following the same, the
Chemical analyst’s report, Ex.P14 and Serologist’s report Ex.P17 were received
by the Court.
h) On completion of the investigation, the Investigating Officer has filed
the final report before the concerned court, which in turn has committed the
case to the court of sessions and necessary charges were framed and the case was
taken up for trial.
i) In order to substantiate the charges, at the time of trial, the
prosecution examined 14 witnesses and relied on 17 exhibits and 7 material
objects. 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. Neither defence witness was examined nor defence document was marked.
j) After hearing the arguments of the learned counsel and looking into the
materials available, the trial Court took the view that the prosecution has
proved the case of murder and found the accused guilty and awarded sentence as
referred to above. Under such circumstances, this criminal appeal has arisen
before this court at the instance of the accused/appellant.
3.Advancing arguments on behalf of the appellant, the learned counsel
Mr.Murugappan made the following submissions:
(a) According to the prosecution, the occurrence has taken place at 8.00
p.m., on 17.02.2005. P.W.1 is the only eyewitness. The evidence of P.W.1 should
have been discarded, since he is not only an interested witness as brother of
the deceased, but also he could have not seen the occurrence at all. The
occurrence has taken place at about 8.00 p.m. and that too in utter darkness.
Even in the observation mahazar or in the rough sketch, there is no mention
about any light or moon light, but through the evidence of P.W.1 it was
developed that he witnessed the occurrence in the moon light. Apart from that,
according to the F.I.R., P.W.1 and the deceased were coming from the mango
grove, but, according to the evidence of P.W.1, they were going into the mango
grove. Thus, in view of the above, he could not have accompanied the deceased at
the time of occurrence.
(b) Added further the learned counsel that according to P.W.1, there were
three cut injuries inflicted upon and no more further injuries were caused to
the deceased, but, according to P.W.2, one more injury was found in the
shoulder.
(c) Even according to P.W.1, the accused was coming from West to East in
the opposite direction and P.W.1 and the deceased were proceeding from East to
West and thus it would be quite clear that the deceased and the accused would
have come face to face with each other, and if actually he had given cuts as put
forth by P.W.1, all the three cut injuries would have been caused on the left
side of the deceased. Contrarily, the postmortem certificate would indicate that
all the three injures were found on the the right side of the deceased and thus,
those injuries could not have been caused as put forth by P.W.1. Also P.W.1
could not be taken as witness to the occurrence.
(d) Added further the learned counsel that the alleged confession and
recovery of M.O.1 was nothing but a cooked up affair and introduced in order to
shape the prosecution case. Thus, the evidence on record would clearly indicate
that prosecution has miserably failed to prove its case.
(e) Added further, the learned counsel that in the instant case, even if
the Court takes a view that the prosecution has proved the factual matrix, that
it was the accused/appellant, who attacked the deceased and caused his death,
the act of the accused would not attract the penal provision of murder.
Admittedly, the appellant was employed in P.W.7’s brick kiln and the deceased
was working as Supervisor, and there was a due of Rs.1,500/- towards the salary,
and the accused was demanding the same for a long time. Despite repeated
demands, the same was not paid. Under such circumstances, even the answer given
by the deceased refusing to make payment at the time of occurrence, provoked the
accused/appellant. A coolie, who could not get the salary for a long time,
but, get an answer of refusal of payment, was provoked by the same and he
attacked the deceased due to the sudden provocation due to non payment of
salary. Under such circumstances, it comes under one of the exceptions to
Section 300 I.P.C., and this has got to be considered.
4.The court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made, and also
scrutinized the materials available.
5.It is not in controversy that the brother of P.W.1 was done to death in
an incident that took place at 8.00 p.m. on 17.02.2005. Following the inquest
conducted by the Investigator, the dead body was subjected to postmortem. The
postmortem doctor has categorically opined as a witness before the Court and
also through the contents of the postmortem certificate that Thangakrishnan died
out of shock and haemorrhage. This fact was never disputed by the appellant
before the trial Court. Hence, this Court has no impediment in recording so.
6.In order to substantiate that it was the accused/appellant who caused
the death of the deceased, the prosecution had only one eyewitness, who was
projected as P.W.1. It is true that P.W.1 is the brother of the deceased. But,
merely on the ground of relationship, his evidence cannot be discarded.
According to the settled principle of law, the Court before accepting the
evidence, must apply the test of careful scrutiny. Even after the application
of the test, this court is satisfied that the evidence of P.W.1 has got to be
accepted. According to him, on the date of occurrence, when he along with his
brother were going through the northern side of the Thovalai Channel on the
southern side of the Brick Kiln of P.W.7, the accused came over there and
demanded for salary. When the deceased refused to pay the same, the accused cut
him thrice, as a result of which he fell down, and immediately not satisfied
with the act, the accused actually kicked and pushed him into the channel, which
is evident from the evidence of P.W.1. The evidence of P.W.1 remained unshaken,
despite cross examination in full and apart from that the ocular testimony which
was projected through P.W.1 stood fully corroborated by the medical evidence,
which was projected through the postmortem doctor and the postmortem
certificate.
7.There were three cut injuries found on the neck of the deceased. Now,
the contention put forth by the learned counsel for the appellant is that the
injuries were actually found on the right side of the deceased and if the
deceased was actually standing in front of the accused/appellant and one was
facing the other, the injuries should have been caused on the left side of the
deceased cannot be countenanced for the simple reason that if the accused was
facing the right side of the neck of the deceased, quite naturally those
injuries could have been caused.
8.Added further, yet another circumstance was the recovery of M.O.1,
pursuant to the confessional statement made. A witness has been examined to that
effect, and thus the factum of arrest, confessional statement and recovery
remained proved. It would be quite indicative of the fact that because of the
non payment of the salary, it was the accused/appellant, who attacked the
deceased at the time of occurrence and caused his death instantaneously. Hence,
it leaves no reasonable doubt in the mind of the Court.
9.Insofar as the second line of arguments is concerned, the Court is able
to find force in the contentions put forth by the learned counsel. Admittedly,
this appellant/accused was employed as a coolie in the brick chamber of P.W.7
and during the relevant time, the deceased was working as a supervisor, and a
sum of Rs.1,500/- towards salary was retained by the deceased and not paid to
the appellant/accused. Despite repeated demands, the deceased did not pay the
amount to him. At the time of occurrence, when there was a demand made by him,
there was a flat refusal for making payment. Thus, naturally a coolie like the
accused would get provoked. At the same time, when there was a refusal to pay
the wages, the accused got provoked and attacked him. Under such circumstances,
it cannot be said that the accused attacked him with intention or premeditation,
but, due to sudden provocation. Hence, it cannot fall under the definition of
murder, and therefore, the act of the accused would attract the penal provision
of Section 304 (Part I) I.P.C. and awarding a punishment of seven years rigorous
imprisonment would meet the ends of justice.
10.Accordingly, the conviction and the sentence of life imprisonment
imposed by the trial Court on the accused/appellant under Section 302 I.P.C. are
set aside, and instead, he is convicted under Section 304 (Part I) I.P.C. and he
is directed to suffer seven years Rigorous Imprisonment. However, the conviction
and the sentence imposed by the trial Court on the accused/appellant under
Sections 341 and 506(i) I.P.C. are confirmed. The imprisonment already
undergone by
the accused/appellant shall be given set off. The sentences imposed are to run
concurrently as recorded by the trial Court. The fine amount imposed by the
Trial Court under Section 302 I.P.C. is ordered to be treated as one imposed
under Section 304 (Part I) I.P.C.
11.In the result, this appeal is accordingly disposed of.
sj/jikr
To
1.The Sessions Judge,
Kanyakumari Division,
Nagercoil.
2.The Inspector of Police,
Aralvaimozhy Post,
Kanyakumari District.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.