BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/04/2007 CORAM THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Criminal Appeal (MD) No.631 OF 2005 Mani alias Essaki .. Appellant Vs State through Inspector of Police, Kulasekaram Police Station, Kanyakumari District. Crime No.869/2001 .. Respondent Appeal filed under Section 374 Cr.P.C., against the Judgment in S.C.No.58/2003 dated 25.10.2005 on the file of the Principal Sessions Judge, Kanyakumari at Nagercoil. !For Appellant : Mr.P.Jeyapaul ^For Respondent : Mr.A.Balaguru Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM,J.)
Challenging the Judgment of the Principal Sessions Judge, Nagercoil made
in S.C.No.58/2003, the sole accused, on being found guilty as per the charge of
murder and awarded life imprisonment along with a fine and default sentence has
brought forth this appeal.
2.The short facts necessary for the disposal of this appeal can be stated
thus:
(a)The accused/appellant is the husband of the deceased, Ambili. The
sister of the deceased Ambili, was given in marriage to the accused ten years
prior to the occurrence. But, she deserted the matrimony and went away.
Afterwards, the deceased was given marriage to the accused. For eking his
livelihood, the accused used to go to Kerala and used to come to the native
place once in a month. He developed suspicion over the fidelity of his wife,
the deceased.
(b)On 25.12.2001, there was quarrel which arose between the accused and
the deceased. The deceased left the house of the accused and went to the
parental home. On 26.12.2001, at about 8.00 a.m., the accused went over there
and attacked his wife, the deceased, with a Kataari on different parts of the
body and he fled away from the place of occurrence. This was witnessed by
P.Ws.1 to 4. P.W.1 is the mother of the deceased, P.W.2 is the daughter of the
deceased and the accused and P.Ws.3 and 4 are the neighbours of P.W.1.
Immediately P.W.1 took the severely injured deceased to Kulasekaram Police
Station and gave a complaint which is marked as Ex.P.1. P.W.18, the Sub
Inspector of Police, attached to Kulasekaram Police Station registered a case on
the basis of Ex.P.1 in Crime No.869/2001 under Section 307 of IPC. The F.I.R.,
Ex.P.21, was despatched to the Court. Then P.W.1 took the injured to
Kulasekaram Government Hospital, where P.W.10, the doctor, attached to the said
hospital, was on duty. At about 9.30 a.m., the deceased was medically examined
and was given the initial treatment. He gave Ex.P.9-the Accident Register.
Thereafter, the deceased was sent to Nagercoil Government Hospital, for further
treatment on the same day. P.W.11, the doctor, attached to the said hospital,
admitted the deceased Ambili at about 10.55 a.m. and performed operations to the
deceased. P.W.11, the doctor, attached to the said hospital, also issued the
Case Sheet in that regard, which is marked as Ex.P.10. On 7.1.2002, the
deceased was sent to Tirunelveli Government Hospital for further treatment.
P.W.12, the doctor, attached to the said hospital, admitted the deceased at
about 4.00 p.m. on 7.1.2002. P.W.13, the doctor, attached to Tirunelveli
Government Hospital, medically examined the deceased and gave Ex.P.11-the Case
Sheet.
(c)Pending treatment, P.W.19, the Inspector of Police, took up the
investigation, proceeded to the spot, made an inspection in the presence of
witnesses and prepared Ex.P.2-the Observation Mahazar and Ex.P.22-the rough
sketch. He also recovered M.O.4-the sample earth and M.O.5-the blood stained
earth under the cover of Ex.P.23-Athakshi. He examined the witnesses and
recorded their statements. On 26.12.2001, at about 6.00 p.m. the accused was
arrested. The accused came forward voluntarily to give a confessional
statement, the admissible part of which is marked as Ex.P.25. Consequent upon
the confessional statement, the accused produced M.O.1-Kataari in the presence
of witnesses and the same was recovered under a cover of Athakshi-Ex.P.26. The
accused was sent for judicial custody. On 24.1.2002, at about 10.30 a.m.,
despite treatment, the injured Ambili died and the death intimation under
Ex.P.12, was given to the respondent Police Station. On receipt of the death
intimation, the case was altered to one under Section 302 of IPC and the Express
Report-Ex.P.27, was despatched to the Court. Them P.W.19, went to the hospital,
conducted inquest on the dead body in the presence of witnesses and
panchayatdars and prepared Ex.P.28-the Inquest Report.
(d)Pursuant to the requisition made, P.W.15, the doctor, attached to
Tirunelvei Government Hospital conducted autopsy on the dead body of the
deceased and gave Ex.P.14-the Postmortem certificate, wherein he has opined that
the deceased would appear to have died of complications of stab injuries to the
region of abdomen. A requisition under Ex.P.17, was forwarded to the concerned
Judicial Magistrate for sending the material objects for the chemical analysis
by the Forensic Department. Accordingly, all the material objects were
subjected to chemical analysis by the Forensic Department which resulted in two
reports, viz., Ex.P.19-the Chemical Analyst Report and Ex.P.20-The Serologist
Report. The investigating officer completed the investigation and filed the
final report.
3.The case was committed to Court of Sessions. Necessary charges were
framed. In order to substantiate its case, the prosecution marched 19 witnesses
and also relied upon 28 exhibits and marked 8 material objects.
4.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 the prosecution witnesses and he denied
them as false. No defence witness was examined. The Trial Court heard the
arguments advanced on either side, scrutinised the materials, took the view that
the prosecution has proved its case beyond reasonable doubt, found the
appellant/accused guilty under Section 302 of IPC and awarded life imprisonment.
Aggrieved over the conviction and sentence, the accused has preferred this
appeal before this Court.
5.Advancing his arguments on behalf of the appellant/accused,
Mr.P.Jeyapaul, learned Counsel inter-alia made the following submissions:
(a)In the instant case, the occurrence has taken place on 26.12.2001 at
about 8.00 a.m. The prosecution examined four as eye witnesses out of whom
P.Ws.1 and 3 have turned hostile. It is pertinent to point out that P.W.1 is
none else than the mother of the deceased. P.W.2, the female child of the
deceased and the accused, was nine years old at the time of evidence, and was
only six years old child at the time of occurrence. The child witness, and that
too, at the tender age of 6 years, could not have given the narration of the
incident as brought forth by the prosecution and therefore, the evidence of
P.W.2 should have been outrightly rejected by the Trial Court. Thus, P.W.4, was
the only evidence available for the prosecution, who claimed to be the neighbour
of P.W.1. Even if the evidence of P.W.4 is carefully scrutinised, it would
reveal the inconsistency and thus, the uncorroborated testimony of P.W.4 should
not have been accepted by the Trial Court.
(b)Added further, the learned counsel that the medical opinion canvassed
by the prosecution did not support the case of the prosecution, since the
deceased died after nearly a month, i.e., 24.01.2002. Also, the medical opinion
given by P.W. 15, the doctor, attached to Tirunelveli Government Hospital, who
conducted the autopsy on the dead body and who has opined that Injury No.3 was
fatal and as a result of which, the death has been directly caused, cannot be
accepted for the simple reason that even at the earliest stage, P.W.11, the
doctor, attached to Nagercoil Government Hospital, who conducted the operation,
has given in his evidence that puss was found and in all fairness, the medical
opinion should have been to the extent stating that the Septicemia was also
found. But, P.W.15, the doctor, had not done so. There would have been all
possible complications and they were not brought forward before the Trial Court.
But, it should have been done. Under the circumstance, it was claimed by the
prosecution that the medical opinion was in support of the prosecution case.
(c)The learned counsel also submitted that the alleged confession and
recovery of M.O.1-Kataari, was nothing but an introduction by the prosecution to
suit its case. The evidence adduced was not worth mentioning and under the
circumstance, the prosecution has not proved its case beyond the reasonable
doubt. Added further, the learned counsel that even assuming that the
prosecution has proved its case beyond reasonable doubt, the act of the accused
who attacked the deceased with M.O.1-Kataari, would not attract the penal
provision of murder for more reasons than one. The occurrence has taken place
on 26.12.2001 and the deceased died on 24.01.2002, i.e, after a period of a
month and from the evidence of P.W.11, the doctor attached to Nagercoil
Government Hospital, it would be quite clear that even at the time of operation,
puss was found and even P.W.15, the doctor, attached to Tirunelveli Government
Hospital, who conducted the autopsy on the dead body of the deceased, has
categorically opined that at the time of
postmortem, puss was found and all would go to show that complications has
arisen during the treatment. Thus, it would be quite clear that it was not the
intention of the accused to kill the deceased or it was not the direct
consequence. Therefore, the act of the accused would not attract the penal
provision of murder and this has got to be considered by this Court.
6.The Court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made and made
a thorough scrutiny of the materials available.
7.In the instant case, it is not a fact in controversy that the deceased
Amibili was attacked by the accused in an incident that took place on 26.12.2001
at about 8.00 a.m., in the house of parental home of the deceased. The fact
that the sister of the deceased was given in marriage to the accused ten years
prior to the occurrence and that she deserted the matrimonial life and
thereafter the deceased was given in marriage to the accused and a female child,
P.W.2, was born, is not disputed by the accused.
8.Insofar as the 4 witnesses examined by the prosecution in respect of the
occurrence, P.Ws.1 and 3 have turned hostile. But, the prosecution to its
benefit, had the evidence of P.Ws.2 and 4. The contention put forth by the
learned counsel for the appellant that P.W.2, happened to be a child of 6 years
old at the time of occurrence and her evidence should not have been accepted by
the Trial Court, remains rejected for the simple reason that the Trial Court has
arrived to the satisfaction, after testing the mental maturity and formed its
opinion that it was the accused who committed the crime. Even though, P.W.2 was
a child of 6 years old at the time of occurrence and 9 years old at the time of
evidence, her evidence has to be accepted.
9.P.W.4, was the neighbour of P.W.1. This fact is not disputed at the
time of cross examination. He has deposed that he was an eyewitness to the
occurrence when the accused attacked the deceased with M.O.1-Kataari. Apart
from this, not even a reason or circumstance is attributed to P.W.4 as to why he
should come before the Court of law to give evidence against the accused and
hence, without any impediment, the evidence of P.W.4 has got to be accepted.
The evidence of P.W.2 coupled with the evidence of P.W.4 would clearly point out
the act of the accused.
10.Yet another circumstance, is the recovery of M.O.1-Kataari pursuant to
the confessional statement given by the accused. Sufficient evidence has been
brought to the notice of the Trial Court in this regard. Thus, the prosecution
has proved that it was the accused who attacked the deceased with M.O.1-Kataari
at the time of incident.
11.The next question that would arise for consideration of this Court is
whether can it be stated that the act of the accused would attract the penal
provision of murder. If the evidence are analysed carefully, the Court has to
answer in negative. The Court is of the opinion that it would be one of
culpable homicide, not amounting to murder. The occurrence has taken place in
the house of the parental home of the deceased, There was a quarrel between the
accused and the deceased on the previous day at the house of the accused.
Thereafter, the deceased left the house of the accused and went to her parental
home. The next morning, i.e., 26.12.2001, the accused went over there and he
has attacked the deceased. As stated above, the act of the accused in attacking
the deceased remains proved. But, at the same time, she was taken to
Kulasekaram Government Hospital, where P.W.10, the doctor, attached to the said
hospital, gave the initial treatment. Thereafter, the deceased was taken to
Nagercoil Government Hospital, where she was medically examined by P.W.11, the
doctor attached to the said hospital and Ex.P.9-the Wound Certificate was
issued. Even, P.W.11, the doctor who has been examined before the Court, has
categorically deposed that at the time of operation, puss was found and
thereafter, the operation was effected and she was under treatment. Despite
treatment, the deceased died after a month, i.e., 24.01.2002. But, the learned
counsel for the appellant would submit that the medical opinion was not in
favour of the prosecution. But, at the same time, it is pertinent to point out
that P.W.15, the doctor, attached to Tirunelveli Government Hospital, has given
a clear opinion at the time of his evidence before the Court, that Injury No.3
was a fatal one and that was the cause of the death of the deceased, though puss
was found at the time of operation and subsequently, nowhere, the doctor has
deposed that the death was due to any complication that has arisen thereafter or
it would amount to Septicemia. But, contrarily he has stated that Injury No.3
was the direct cause for the death and that part of the medical evidence, in the
opinion of the Court, would lead to the conclusion that it was a direct cause.
The act of the accused would not attract the penal provision of murder as it was
not an intended one, since the deceased was under treatment for a period of one
month and that the medical opinion was canvassed to that effect. At the same
time, the accused should have got the intention to cause injury to the deceased,
which in the ordinary course of event, would likely to cause the death.
13.Under such circumstances, this Court is of the considered view that it
is a fit case where the conviction and sentence under section 302 IPC can be
modified to one under section 304(i) IPC and awarding seven years of rigorous
imprisonment would meet the ends of justice.
14.Hence, the conviction of the appellant/accused, for the offence under
Section 302 IPC and the sentence of life imprisonment, are modified to one under
Section 304(i) of IPC and punishment of seven years rigorous imprisonment is
awarded. The sentence already undergone by the appellant shall be given set
off. The fine amount imposed under section 302 of IPC by the Trial Court shall
be treated as fine amount under Section 304(i) of IPC.
15.With the above modification in conviction and sentence, the criminal
appeal is dismissed.
To
1.The Principal Sessions Judge, Kanyakumari District.
2.The Inspector of Police,
Kulasekaram Police Station,
Kanyakumari District.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
