BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12/04/2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRIMINAL APPEAL(MD)NO.109 OF 2005 M.Muthukumar .. Appellant Vs. State rep. by The Inspector of Police, Sivagangai Taluk Police Station, Crime No.159 of 2002 .. Respondent This criminal appeal is preferred under Section 374 Cr.P.C against the judgment of the learned District and Sessions Judge, Sivagangai made in S.C.No.133 of 2003, dated 25.11.2004. !For Appellant .. Mr.K.Jegannathan .. Amicus Curiae ^For Respondent .. Mr.Daniel Manoharan, APP :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
Challenging the judgment of the learned Sessions Judge, Sivaganga made in
S.C.No.133 of 2003, this appeal has been brought forth by the first accused, who
along with the other accused ranked as A-2 stood charged as follows:
A-1 – Sections 294(b), 341, 307 and 302 IPC
A-2 – Sections 341,307 r/w 34 and 302 r/w 34 IPC
On trial, A-1 was found guilty under Sections 324 and 302 IPC and was sentenced
to undergo 2 years RI and to pay a fine of Rs.2000/-, in default to undergo 6
months SI under Sections 324 IPC and life imprisonment and to pay a fine of
Rs.3000/-, in default to undergo one year SI under Section 302 IPC, while A-2
was acquitted of the charges levelled against her.
2.The short facts necessary for the disposal of this appeal can be stated
thus:
a)The second accused is the wife of one Thangasamy, originally shown as
accused and died. The first accused is the son-in-law of the said Thangasamy.
Thangasamy and his wife had no issues. Then, they took one Sudha on adoption
and she was given in marriage to the first accused 4 years prior to the
occurrence. P.W.1 is the younger brother of the said Thangasamy. P.W.4 is an
another brother of Thangasamy. The said Thangasamy had other brothers also.
P.W.2 is the son of P.W.1. The deceased Thamayanthi is the wife of P.W.1. They
were residing at Nedungulam village. The family members of P.W.1 were aggrieved
over the adoption of Sudha by Thangasamy. The family members of P.W.1 were
under impression that a child from their family would have been adopted. So
that, the joint family properties would come to their hand. Hence, they were
aggrieved over the same. The family members of the accused were under impression
that Thamayanthi, the wife of P.W.1, was responsible for the same.
b)10 days prior to the occurrence, the accused Thangasamy beat
Thamayandhi. But, P.W.1 and Thamayanthi did not approach police or anybody in
that regard. While the matter stood thus, on 19.7.2002 at about 8.45 p.m., when
P.W.1, P.W.2 and P.W.4 were all sitting in front of the house and chatting, the
accused, who were residing in the opposite house, rushed over there. They were
uttering abused language. It was questioned by P.W.2. Immediately, the first
accused, who was having knife in hand, attacked P.W.2 on flank. On seeing this,
the wife of P.W.1 rushed over and immediately, the first accused stabbed her on
her chest. At the time of occurrence, the other two accused restrained the P.Ws.
and facilitated the crime. The accused fled away from the place of occurrence.
The occurrence was witnessed by P.Ws.1 and 3.
c)Immediately, they arranged the car and took Thamayanthi and P.W.2 to the
Government Hospital, Sivagangai. P.W.7, the Doctor, who was on duty at that
time, declared Thamayanthi dead and he has issued Ex.P.6, the accident register
in this regard. P.W.7, the same Doctor has given treatment to P.W.2 and has
issued Ex.P.8, the accident register.
d)P.W.1 rushed over to Sivaganga Taluk Police Station, where P.W.10, the
Sub Inspector of Police was on duty at that time. Ex.P.1, the complaint was
given by P.W.1 to P.W.10, on the strength of which, a case came to be registered
in Crime No.159 of 2002. Ex.P.11, the FIR was despatched to the Court.
e)P.W.11, the Inspector of Police, on receipt of the copy of the FIR, took
up the investigation, proceeded to the spot and made an inspection in the
presence of the witnesses. He has prepared Ex.P.2, the observation mahazar and
Ex.P.12, the rough sketch. He has also recovered the material objects from the
place of occurrence under a cover of mahazar. Following the same, he went to the
Government Hospital, Sivaganga and conducted inquest on the dead body of the
deceased in the presence of the witnesses and panchayatdars and prepared
Ex.P.13, the inquest report. He sent the dead body to the hospital for the
purpose of autopsy along with the requisition.
f)P.W.8, the Doctor, attached to the Government Hospital, Sivaganga, on
receipt of the requisition, has conducted autopsy on the dead body of the
deceased. He has issued Ex.P.10, the post-mortem certificate, wherein he has
opined that the deceased would appear to have died of shock and haemorrhage due
to the injuries sustained.
g)Pending investigation, P.W.11 arrested the accused on 22.7.2002. A-1
voluntarily came forward to give a confessional statement, which was recorded in
the presence of the witnesses, the admissible part of which was marked as
Ex.P.4. Pursuant to the confessional statement, A-1 produced M.O.1, knife, which
was recovered under a cover of Ex.P.5, mahazar. All the material objects
recovered from the place of occurrence, from the dead body of the deceased and
M.O.1, knife recovered from A-1 were subjected to chemical analysis by the
Forensic Sciences Department, which resulted in two reports, namely Ex.P.16, the
Chemical Analyst’s report and Ex.P.17, the Serologist’s report. On completion of
the investigation, the Investigating Officer has filed the final report.
3.The case was committed to the court of sessions and necessary charges
were framed. One of the accused Thangasamy died even before the commencement of
trial and under these circumstances, the case was proceeded against the other
two accused. In order to substantiate the charges levelled against the accused,
the prosecution examined 11 witnesses and relied on 17 exhibits and 8 M.Os. On
completion of the evidence on the side of the prosecution, the accused were
questioned under Section 313 Cr.P.C. as to the incriminating circumstances found
in the evidence of prosecution witnesses, which they flatly denied as false. No
defence witness was examined. The trial court heard the arguments advanced on
either side, scrutinised the materials available and took the view that the
prosecution has proved the case so far as A-1 is concerned in respect of the
charges as stated above and awarded imprisonment as referred to above and it has
acquitted A-2 of all the charges levelled against her. Hence, this appeal has
been brought forth by the first accused.
4.Advancing his arguments on behalf of the appellant, the learned counsel
would submit that in the instant case, the prosecution has not proved the case
beyond reasonable doubt; that there are three eyewitnesses examined, out of whom
one was injured witness; that though P.Ws.1 and 3 have claimed to be the
eyewitnesses, their evidence, if carefully scrutinised, would indicate that they
are not only interested, but also have given false evidence; that there are
vital discrepancies in the evidence of all the three eyewitnesses; that the
medical evidence adduced by the prosecution did not corroborate with the ocular
testimony; that so far as A-1 is concerned, there was a specific accusation that
it was he, who stabbed the deceased, after attacking P.W.2, but the evidence
produced by the prosecution is not reliable; that the prosecution had produced
evidence in respect of the alleged arrest, confessional statement and recovery;
that the witness examined in this regard also has not spoken the truth and the
evidence was shaky at the time of cross examination; that all put together would
indicate that the prosecution has not proved the case beyond reasonable doubt;
that the trial court was not prepared to accept the case of prosecution in
respect of the second accused, but was prepared to accept the evidence of same
witness in order to hold the first accused guilty of the charges and that the
judgment of the lower court is erroneous and hence, it has got to be set aside.
5.Added further the learned counsel that even assuming that the
prosecution has proved the case that it was the first accused, who stabbed the
deceased and caused her death, the act of A-1 would not attract the penal
provisions of murder; that even as per the case of prosecution, the witnesses
were chatting in front of the house and at that time, the accused persons were
coming from their house and used abusive language; that in a heat exchange of
words and in the wordy dual, A-1 has acted so; that even as per the case of
prosecution, when the accused No.1 attacked P.W.2, it was the deceased, who
intervened and thereby, she sustained injuries and under these circumstances,
the act of the accused No.1 would not attract the penal provisions of murder,
but it would be one culpable homicide not amounting to murder and that it has
got to be considered by this Court. In support of his contentions, the learned
counsel has relied on the following two decisions:
(1)2006(3) CRIMES 46(SC) – BUNNILAL CHAUDHARY VS. SATATE OF BIHAR.
(2)1984 L.W.(CRL.)23 (SUGUMARAN ALIAS ELI, IN RE)
6.Heard the learned Additional Public Prosecutor on the above contentions.
This Court has paid its anxious consideration on the submissions made.
7.It is not the fact in controversy that Thamayanthi, the wife of P.W.1
was done to death in an occurrence that took place at about 8.45 p.m. on
19.7.2002 at the place as put forth by the prosecution. After the inquest was
over by the Investigating Officer, the dead body was subjected to post-mortem by
P.W.8, the Doctor. He has categorically opined not only in Ex.P.10, the post-
mortem certificate, but also in his evidence before the court that the deceased
would appear to have died of shock and haemorrhage due to the injuries
sustained. The fact that the deceased died out of homicidal violence was never
questioned by the appellant at any stage of proceedings. Hence, it has got to be
factually recorded so.
8.In order to substantiate the case of prosecution that at the time of
occurrence, A-1 attacked P.W.2 with knife and also stabbed the deceased on her
chest and caused her death, the prosecution rested its case through direct
evidence, by marching three eyewitnesses, namely P.Ws.1 to 3. Fortunate for the
prosecution, out of three eyewitnesses, P.W.2 was an injured witness.
Immediately after the occurrence, he was taken to the hospital along with
Thamayanthi. He was given treatment by P.W.7, the Doctor. Ex.P.8 was the
accident register in his regard. A scrutiny of Ex.P.8 would indicate that an
occurrence has taken place, in which known persons attacked with knife. Apart
from the evidence of P.W.2, the prosecution had to its benefit the evidence of
P.Ws.1 and 3. They have spoken in one voice about the act of the accused. The
medical evidence produced by the prosecution stood in corroboration with the
ocular testimony.
9.Yet another circumstance against the accused is the recovery of M.O.1,
knife, pursuant to the confessional statement made by A-1. In view of the
sufficiency of evidence, as narrated above, the contention of the learned
counsel for the appellant, questioning the case of prosecution in respect of the
act of the accused, has got to be rejected for the reason that it was the
accused No.1, who attacked not only P.W.2 with knife and caused injury, but also
stabbed the deceased and caused her death.
10.Coming to the second line of argument of the learned counsel for the
appellant that it was he, who stabbed the deceased and caused her death, the act
of A-1 would not attract the penal provisions of murder, the Court is able to
see sufficient force in the contention. Even as per the prosecution case, at the
time of occurrence, all the members of the family of P.W.1 were sitting and
chatting in front of the house. At that time, the accused came there from their
house situated in the opposite direction. The accused used abusive language and
it was questioned by P.Ws. Then, there was a wordy dual. In that, the accused
No.1, having knife in hand, attacked P.W.2 at first and at that time, it was the
deceased, who intervened and thus, he attacked her also. At the time of attack,
he has caused only one stab injury on her and that has caused her death. The
circumstance would indicate that A-1 would not have acted with an intention or
pre-meditation, but it was due to wordy dual between P.Ws. and the accused, he
has acted so. When there was a wordy dual and when the deceased intervened, in
that process, the accused has attacked her. At the same time, there is nothing
to show that there was any intention to cause death or he has acted with an
intention to cause injuries, which are sufficient in the ordinary course of
nature to cause death. The first accused has acted in a sudden quarrel and
wordy dual and under these circumstances, the act of the accused would not
attract the penal provisions of murder, but it would attract the penal
provisions of Section 304(I) IPC and awarding punishment of 7 years RI would
meet the ends of justice.
11.Accordingly, the judgment of the lower court finding the accused No.1
guilty under Section 302 IPC and sentencing him to undergo life imprisonment is
modified to one under Section 304(I) IPC and is sentenced to undergo 7 years RI.
The period of sentence already undergone by him is ordered to be given set off.
The fine amount imposed by the lower court under Section 302 IPC shall be
treated as fine amount imposed under Section 304(I) IPC. In other respects, the
judgment of the lower court is confirmed.
12.With the above modification in conviction and sentence, this criminal
appeal is dismissed.
13.Mr.K.Jegannathan, Advocate is entitled to get remuneration from the
Legal Aid, Madurai.
vvk
To
1.The Sessions Judge,
Sivagangai.
2.The Inspector of Police,
Sivagangai Taluk Police Station.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.