BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/01/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL APPEAL NO.61 OF 2006 Moni alias Dhanasekharan .. Appellant Vs. State of Tamil Nadu, through the Inspector of Police, Thuckalay, Kanyakumari District (Crime No.662 of 2003) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Sessions Judge, Kanyakumari Division at Nagercoil made in S.C.No.19 of 2004, dated 2.11.2004. !For Appellant ... Mr.G.Arumugaperumal ^For Respondent ... Mr.C.Daniel Manoharan, APP :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
The sole accused/appellant herein, who stood charged, tried and found
guilty under Section 302 IPC and awarded with life imprisonment along with a
fine of Rs.100/- in default to undergo one month RI, has brought forth this
appeal before this court.
2.The short facts necessary for the disposal of this appeal could be
stated as follows:
a)P.W.2, the resident of Oviyampalayam, was having four lorries in his
company, named Sreemurugan Lorry Service. The deceased was the driver in respect
of one of his lorries, bearing registration No.KA-01/C 6769. The accused was
working as Cleaner along with the deceased. 10 days prior to the occurrence,
when the lorry was proceeding from Maharashtra after loading Marbles, the
accused took Rs.10,000/- from the lorry and absconded. The deceased informed
the same to the owner, P.W.2 and also caught him. Out of Rs.10,000/-, the
accused spent Rs.300/-. All of them returned back.
b)P.W.15, who was working as Painter in the workshop of one Joyan in
Marthandam-Kulasekaram road, knew both the accused and the deceased. On
18.08.2003 at about 5.30 p.m., when he was in front of the tea shop, the lorry
driven by the deceased was stopped and the Cleaner/accused was unscrewing the
tyre. When there was some delay caused, immediately, the deceased kicked and
asked him to do the job early. By that act, the deceased caused simple injury on
the accused. P.W.15 shouted at the deceased.
c)After coming back, the lorry was taken to Arumanai on 28.08.2003 for
loading Rubber from the shop of P.W.5. P.W.6 was the load man employed for that
purpose. Actually, the loading work took place between 10.00 p.m. on 28.08.2003
and 12.00 midnight. After it was being loaded, the lorry was taken to the shop
of one Rajan for loading certain goods. After loading was over, the goods were
being tied. Again, the deceased was shouting at the accused to do the work
early. The accused was telling that he was not prepared to board the lorry,
since he was often being abused and assaulted by the driver, namely the
deceased.
d)At about 2.45 a.m. on 29.08.2003, when P.W.9, the petty shop owner, was
in his shop, the accused came and asked for cigarette that it was wanted by the
driver and hence, the same was sold. when P.W.8, who was the bakery shop owner,
was in his shop at 3.00 a.m. on 29.08.2003, he found both the accused and the
deceased in the lorry, which was stopped nearby. In the early hours, P.W.1, who
was an another driver, running his lorry on the highway, on seeing that the
lorry, of which the deceased was the driver, was found stopped, immediately got
down from his lorry and went near the lorry of the deceased and found the dead
body of the deceased. Immediately, he informed the same to P.W.2, pursuant to
which, a complaint was given under Ex.P.1 to P.W.17, the Sub Inspector of Police
of Thucklay Police Station on 29.08.2003. On the strength of the same, a case
came to be registered in Crime No.662 of 2003 under Section 302 IPC Ex.P.13, the
FIR was despatched to the court.
e)On receipt of the copy of the F.I.R., the case was taken up for
investigation by P.W.18, the Inspector of Police, who made an inspection of the
scene of occurrence and prepared Ex.P.2, the observation mahazar and Ex.P.14,
the rough sketch. He recovered the material objects from the place of
occurrence under a cover of mahazar in the presence of the witnesses. Then, he
conducted inquest on the dead body of the deceased in the presence of the
witnesses and panchayatdars and prepared Ex.P.15, the inquest report. The entire
place of occurrence and the dead body were photographed by P.W.14, the
Photographer. Ex.P.11 (series) were the photos and Ex.P.12 (series) were the
negatives.
f)The dead body was subjected to post-mortem by P.W.12, the Doctor,
attached to the Government Hospital, Thuckalay, on receipt of the requisition
for conducting post-mortem. After conducting post-mortem, he gave Ex.P.6, the
post-mortem certificate, wherein he found 12 external injuries and has opined
that the deceased would appear to have died of shock and haemorrhage due to the
injuries sustained.
g)Pending investigation, P.W.18, the Investigating Officer arrested the
accused on 4.9.2003 at about 6.30 p.m. in the presence of the witnesses and
recorded his confessional statement. A requisition was given to the Chief
Judicial Magistrate, Nagercoil for conducting test identification parade and the
same was ordered. P.W.11, the Judicial Magistrate, Eraniel conducted the test
identification parade on 21.11.2003 at 4.30 p.m. at Central Jail, Palayamkottai.
P.Ws.7,8 and 9 identified the accused correctly. At the time of identification
parade, no objection was raised. But, the accused would add that the accused was
shown to those witnesses when he was in the police custody. The proceedings of
the identification parade was marked as Ex.P.4.
h)Following the same, the material objects recovered from the place of
occurrence and from the dead body of the deceased were sent for chemical
examination by the Forensic Science Department, which resulted in Ex.P.9, the
Chemical Examiner’s report and Ex.P.10, 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. In order to substantiate the charges, the prosecution examined 18
witnesses and relied on 15 exhibits and 6 M.Os. On completion of the evidence on
the side of the prosecution, the accused was questioned under Section 313
Cr.P.C. procedurally as to the incriminating circumstances found in the evidence
of prosecution witnesses. He denied them as false. No defence witness was
examined. The trial court heard the arguments advanced and took a view that the
prosecution has proved its case beyond reasonable doubt and recorded an order of
conviction and sentence, as referred to above. Hence, this appeal has arisen.
4.In support of the appeal, the learned counsel would submit that in the
instant case, the prosecution rested its entire case on circumstantial evidence.
The prosecution has not proved all or any of the circumstances relied on by it.
It is not in controversy that the deceased, who was the driver and the accused,
who was the Cleaner, were employed under P.W.2, the lorry owner. The first
incident, according to the prosecution, was that the lorry, in which the
deceased was the driver and the accused was the cleaner, was taken to
Maharashtra and when they were proceeding from Maharashtra, the accused has
stolen Rs.10000/-, out of which except Rs.300/-, the balance was recovered, as
per the evidence. Had it been true, after stealing such an amount, he would not
have continued in service, but no steps have been taken by P.W.2. Thus, it is
quite clear that it was nothing, but false. The witness, who has been examined,
speaking to the circumstances, was P.W.15, the Painter. He would say that when
the Cleaner was unscrewing the wheel, the deceased kicked him and caused simple
injury. Following the same, when loading work took place in the shop of P.W.5 on
28.08.2003 between 10.00 p.m. on 28.08.2003 and 12.00 midnight, P.W.6 was the
load man there. Thereafter, they proceeded to the shop of one Rajan, where the
accused refused to get into the lorry. But, the said Rajan was not examined.
5.The learned counsel would further add that P.W.8, the Bakery shop owner,
was examined. According to P.W.9, who is the petty shop owner, the accused
purchased Cigarette for the driver on 29.08.2003. These were taken place,
according to the witnesses, at about 3.00 a.m. and 2.45 a.m. respectively. In
these night hours, those persons could not have seen the accused and the
deceased and there was no occasion for identifying them, since they have seen
the accused and the deceased on only one occasion. So far as these witnesses are
concerned, the lower court relied upon the proceedings of the identification
parade. It is pertinent to point out that, the accused has categorically stated
that at the time when he was in the police custody, he was shown to all the
witnesses and hence, he has raised such an objection earlier and thus, the
identification parade was of no legal consequence and that it should not be
given any evidentiary value at all and under these circumstances, the
prosecution was bereft of any evidence, but the lower court was prepared to
accept such evidence.
6.Added further the learned counsel that, even assuming that the evidence
put forth by the prosecution is to the effect that it was the accused, who
attacked the deceased with Spanner and caused the death of the deceased, the act
of the accused would not come within the ambit of murder. All the evidence
projected by the prosecution would indicate that there was an occasion, in which
the accused was abused and assaulted by the deceased and the accused also
sustained simple injury. Further, there was an occasion on the date of
occurrence that the accused refused to get into the lorry and go with the
deceased. Thus, he was tortured. Hence, the accused got sufficient provocation,
which resulted in the act of the accused. Hence, the act of the accused was
neither intentional nor premeditated. Therefore, the act of the accused cannot
be termed as murder, but it is only a culpable homicide not amounting to murder,
which has got to be considered by this court.
7.The court heard the learned Additional Public Prosecutor on the above
contentions.
8.The court has paid its anxious consideration on the submissions made.
9.It is not in controversy that the deceased Balasubramanian was done to
death inside the lorry belonged to P.W.2 on 29.08.2003 at about 3.30 a.m., when
the lorry was stopped in the highway. Following the inquest, the dead body was
subjected to post-mortem by P.W.12, the Doctor, who has issued Ex.P.6, 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. Therefore, the fact
that the deceased died out of homicidal violence was never questioned by the
appellant/accused and hence, it has got to be recorded so.
10.True it is, the prosecution rested its case on circumstantial evidence,
since it has no direct evidence to offer. It is not in controversy that the
accused was employed as Cleaner in the lorry of P.W.2, in which the deceased was
the Driver. On 28.08.2003, the lorry was taken to the shop of P.W.5 for loading
rubbers, in which P.W.6 was the load man. P.Ws.5 and 6 actually knew the accused
and the deceased. They have spoken to the fact that the load was over at about
12.00 midnight and thereafter, the lorry was taken to the shop of one Rajan,
where certain goods were loaded. Immediately thereafter, the accused had refused
to get into the lorry, since he was being abused and assaulted by the deceased.
In the instant case, it is pertinent to point out that according to P.W.15, who
was the Painter, when he was taking tea in a tea shop near the workshop, where
he was working, he found that in front of his shop, one lorry was stopped and
the Cleaner/accused was unscrewing the wheel and at that time, the deceased
kicked him and caused simple injury. This was also the reason why the accused
refused to get into the lorry at night hours. However, he also got into the
lorry, which was driven by the deceased.
11.Further, the lorry was stopped in front of the shop of P.W.8, bakery
shop owner and it was he, who found both of them together at about 3.00 a.m. on
the date of occurrence. At about 2.45 a.m., the accused was coming to the shop
of P.W.9, the petty shop owner and asked Cigarette for the driver of the lorry.
Thus, both the witnesses have clearly spoken above these facts. Further,
P.Ws.5,6,8 and 9 have seen both the accused and the deceased together just a few
hours prior to the time of occurrence.
12.In the instant case, the test identification parade has been conducted
within a reasonable time by the Judicial Magistrate, Eraniel. The witnesses,
namely P.Ws.7,8 and 9, have clearly identified the accused. The contention now
put forth by the appellant’s side that the accused was shown to those witnesses
when he was in police custody, is of no avail, since the witnesses have given a
clear evidence in this regard and it remains unshaken. All would go to show that
though the prosecution rested its case on circumstantial evidence, it was able
to make out a chain without a snap, pointing to the hypotheses that except the
accused, no one else could have committed the offence. Under these
circumstances, the lower court was perfectly correct in accepting the evidence
of prosecution and finding the appellant guilty. Further, it has recorded a
finding that it was he who attacked the deceased and caused the death of the
deceased.
13.Coming to the question as to the nature of the act of the accused, the
court is able to see sufficient force in the contention of the learned counsel
for the appellant. Admittedly, both the accused and the deceased were employed
under P.W.2 as Cleaner and Driver respectively. At the earliest, it was the
driver, namely the deceased, who gave complaint to P.W.2, the owner that the
Cleaner has taken away Rs.10,000/- and subsequently, during travel, there was an
occasion, in which the deceased Driver has not only abused the accused, but also
assaulted him. P.W.15 has been examined, who spoke to the fact that on one
occasion, the deceased kicked the accused/cleaner and caused simple injury.
P.W.6 has spoken to the fact that the accused refused to get into the lorry, in
view of the fact that he was abused and assaulted by the lorry driver. The above
incident has taken place a few hours prior to the time of occurrence. Thus, it
would be quite clear that there was an occasion, in which the deceased, who was
the lorry driver, has abused and assaulted the accused and caused simple injury
to him and hence, naturally one could have been provoked. Under these
circumstances, the occurrence has followed on 29.08.2003. Thus, in the instant
case, there was neither premeditation nor intention, but due to provocation, the
accused attacked the deceased with the Spanner and caused his death. Under these
circumstances, the act of the accused cannot be termed as murder, but it would
attract the penal provision of Section 304(I) IPC. In the opinion of the court,
awarding punishment of 7 years R.I. would meet the ends of justice.
14.In the result, the conviction and sentence imposed on the appellant
under Section 302 IPC is modified to one under Section 304(I) IPC and the
appellant is directed to suffer 7 years R.I. The sentence already undergone
by the appellant 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. With the above modification in conviction and sentence, this
criminal appeal is dismissed.
vvk
To
1.The Sessions Judge,
Kanyakumari Division
at Nagercoil.
2.The Inspector of Police,
Thuckalay,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.