BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12/03/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL APPEAL (MD)NO.627 OF 2000 P.Sekar .. Appellant Vs. State by The Inspector of Police, Manapparai Police Station, Manapparai, Trichy District. .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C. against the judgment of the learned I Additional District Judge-cum-Chief Judicial Magistrate, Trichy made in S.C.No.139 of 1999, dated 27.01.2000. !For Appellant ... Mr.E.Somasundaram, Legal Aid Counsel ^For Respondent ... Mr.N.Senthurpandian, APP :JUDGMENT
(The judgment of the court was delivered by M.CHOCKALINGAM, J.)
Challenge is made to the judgment of the learned I Additional Sessions
Judge-cum-Chief Judicial Magistrate, Tiruchirapalli made in S.C.No.139 of 1999,
whereby this appellant ranked as first accused along with two others, shown as
A-2 and A-3, stood charged as follows:
A-1 – S.302 IPC
A-2 and A-3 – S.114 r/w S.302 IPC
On trial, the first accused was found guilty under Section 302 IPC and sentenced
to undergo life imprisonment and to pay a fine of Rs.1000/-, in default to
undergo 6 months R.I., while the accused Nos.2 and 3 were found not guilty and
they were acquitted of the charge levelled against them. Hence, this appeal has
been filed at the instance of the first accused.
2.The short facts necessary for the disposal of this appeal can be stated
thus:
a)P.W.1 is the wife of the deceased Palanisamy and they were living at
Vellivadi village within the jurisdiction of the respondent police station. The
first accused is the brother, the second accused is the mother and the third
accused is the sister of the deceased. One juvenile Kalarani is also the sister
of the deceased.
b)On the date of occurrence, namely on 31.07.1998, at about 10.00 a.m.,
there was a quarrel in between the first accused and the deceased in connection
with the sharing of water from the common Well. At that time, the first accused
brought an aruval from his house and attacked the deceased and caused injuries.
The severely injured was taken to the Manapparai Government Hospital, wherefrom
he was taken to the Tiruchirapalli Government Hospital, where he died on
02.08.1998.
c)The occurrence was witnessed by P.Ws.1,4,5 and 6. Immediately, P.W.1
proceeded to the Manapparai Police Station at about 2.00 p.m. and gave Ex.P.1,
the complaint to P.W.9, the Sub Inspector of Police. On the strength of the
same, P.W.9 registered a case in Crime No.556 of 1998 under Section 307 IPC.
Ex.P.9 was the F.I.R. The severely injured was sent to the hospital along with
the memo. On the very day at about 3.00 p.m., the second accused came to the
police station and gave Ex.P.10, the complaint, on the strength of which a case
came to be registered in Crime No.557 of 1998 under Sections 341 and 323 IPC and
Ex.P.11 was the F.I.R. in that regard. Both the F.I.Rs. were despatched to the
Court. The accused were sent for medical treatment along with the memo.
d)On 31.7.1998, P.W.3, the Doctor attached to Manapparai Government
Hospital gave treatment to Palanisamy and sent him to the Tiruchirappali
Government Hospital for further treatment. On the same day, he also medically
treated A-2 and has issued Ex.P.3, the wound certificate. The first accused was
also medically examined by P.W.3 and Ex.P.4, the wound certificate was marked to
that effect. P.W.3 has also medically treated one Kalarani and has issued
Ex.P.5, the wound certificate.
e)P.W.10, the Inspector of Police of the said circle, on receipt of the
copies of both the F.I.Rs, took up the investigation and proceeded to the place
of occurrence. He made an inspection in the presence of the witnesses and
prepared Ex.P.6, the observation mahazar and Ex.P.12, the rough sketch. He also
recorded the statements of the witnesses. On 01.08.1998 at about 13.00 hours, he
arrested A-1, A-3 and one Kalarani in the presence of the witnesses. The first
accused voluntarily came forward to give confessional statement, which was
recorded in the presence of the witnesses. The admissible part of the same was
marked as Ex.P.7, pursuant to which he produced M.O.1, aruval, which was
recovered under a cover of mahazar. Then, the accused were sent for judicial
remand.
f)On intimation from the Tiruchirapalli Government Hospital on 02.08.1998
that the injured died in the hospital, P.W.10 altered the case into Section 302
IPC and Ex.P.14, the altered F.I.R. was despatched to the court. Then, he
proceeded to the hospital and conducted inquest on the dead body of the deceased
in the presence of the witnesses and panchayatdars and prepared Ex.P.16, the
inquest report. Following the same, the dead body of the deceased was sent for
the purpose of post-mortem.
g)P.W.2, the Doctor attached to the Tiruchirapalli Government Hospital, on
receipt of the requisition, has conducted post-mortem on the dead body of the
deceased and he has noted the injuries in Ex.P.2, 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.
h)Pending investigation, P.W.10 arrested the second accused on 10.08.1998
in the presence of the witnesses and she was sent for judicial remand. So far as
the case in Crime No.557 of 1998 was concerned, it was closed as mistake of
fact. All the material objects recovered from the place of occurrence, from the
dead body of the deceased and the M.Os. recovered from the accused were sent for
chemical analysis by the Forensic Science Department, which resulted in two
reports, namely Ex.P.20, the Chemical Analyst’s report and Ex.P.21, 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 marched 10
witnesses and relied on 21 exhibits and 3 M.Os. On completion of the evidence on
the side of the prosecution, the accused were questioned under Section 313
Cr.P.C. procedurally 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 and took the view
that the prosecution has proved the case beyond reasonable doubt in respect of
the first accused and found him guilty under Section 302 IPC and awarded life
imprisonment along with fine and default sentence. So far as A-2 and A-3 are
concerned, the trial court took the view that the prosecution has not proved the
case beyond reasonable doubt and hence, it acquitted them of the charge levelled
against them. Hence, this appeal has arisen at the instance of the first
accused/appellant herein.
4.Advancing arguments on behalf of the appellant, the learned counsel
would submit that the case of the prosecution was that at about 10.00 a.m. on
31.07.1998 at the place of occurrence, on the abetment of A-2 and A-3, who
facilitated the crime, A-1 attacked his brother and caused severe injuries; that
the severely injured was originally taken to the Government Hospital, Manaparai
and therefrom, he was taken to the Tiruchirappalli Government Hospital, where he
succumbed to injuries; that the prosecution has relied on the evidence of
P.Ws.1,4,5 and 6 as eyewitnesses; that P.W.1 is closely related to the deceased
and thus, if the test of careful scrutiny is applied, her evidence will not
stand the test, since the evidence of the eyewitnesses is not only contradictory
to each other, but also self inconsistent; that the lower court was not prepared
to accept the evidence of the same witnesses in respect of A-2 and A-3 and
hence, it has acquitted them in respect of the charge levelled against them, but
it has found the first accused guilty; that what were all reasons applicable for
not believing those witnesses in respect of A-2 and A-3, were equally applicable
to the first accused also and hence the first accused should have also been
acquitted.
5.Added further the learned counsel that the occurrence has taken place at
about 10.00 a.m., but the report has been given at about 2.00 p.m. and thus,
there was a delay of four hours; that the police station, where the case has
been registered and the court are situated in the same place, but the F.I.R. has
reached the court at about 4.00 p.m. and thus, there was a delay; that in
Ex.P.1, the complaint, it is found that P.W.1, first of all, went to the police
station along with the injured and therefrom, she went to the hospital, but in
the evidence, she has stated that she directly went to the hospital; that P.W.3
was the Doctor, who gave treatment to the injured at the Manapparai Government
Hospital; that according to P.W.3, he was conscious and oriented also; that if
to be so, he should have made some statements to P.W.3, the Doctor and the same
should have been recorded in the accident register, but neither original
accident register was produced nor the copy thereon and thus, the non production
of the accident register in respect of the deceased at the Manapparai Government
Hospital would be fatal to the prosecution case; that according to P.W.3, the
deceased was conscious and he was in speaking condition; that the occurrence has
taken place on 31.07.1998 and he died only on 02.08.1998 and thus, he lived
nearly for two days; and that if to be so, when his condition was so serious,
there could not be any impediment to call the Judicial Magistrate concerned to
record the dying declaration, but it was not done so.
6.The learned counsel would further submit that in the instant case,
inconsistencies were noticed; that further, the medical opinion canvassed was
not in favour of the prosecution; that the medical theory warrants that post-
mortem should be done completely, but in the instant case, a perusal of the
post-mortem certificate would reveal that it was done partly and in respect of
the head only, it was done and in respect of the other parts, no post-mortem has
been conducted; that according to the prosecution, on arrest of the first
accused on 01.08.1998, he gave confessional statement, pursuant to which M.O.1,
aruval was recovered; that according to P.W.1, when she went to the police
station, the first accused was actually found there and thus, that part of the
evidence has become false, which should have been rejected; and that all put
together would go to show that the prosecution has not proved the case beyond
reasonable doubt.
7.Added further the learned counsel that in the instant case, even as per
the evidence adduced through the eyewitnesses, there was a wordy altercation
regarding the sharing of water and the incident has followed the same; that as
per the evidence of P.Ws., it was the deceased, who pushed both the women folks
down and they fell down and hence, due to provocation, the first accused took
aruval and attacked the deceased and thus, there was a quarrel and provocation
and hence, the act of the first accused would not attract the penal provisions
of murder and therefore, these legal aspects have got to be considered by this
court, if the court is of the view that the prosecution has proved the other
facts of the case.
8.The court heard the learned Additional Public Prosecutor on the above
contentions and has paid its anxious consideration on the submissions made.
9.The fact that one Palanisami, the husband of P.W.1, following an
incident that took place on 31.07.1998 at about 10.00 a.m., was taken to the
Manapparai Government Hospital and thereafter, he was taken to the Government
Hospital, Tiruchirappalli, where he died. Following the inquest, the dead body
was subjected to post-mortem. P.W.2, the Doctor, who conducted post-mortem, has
given his categorical opinion that the deceased would appear to have died out of
the injuries sustained externally and the corresponding internal injuries. The
fact that the said Palanisami met homicidal death was never questioned by the
appellant and hence, the prosecution has proved the said fact leaving no doubt.
10.In order to substantiate the charges levelled against the first
accused, the prosecution has rested its case on the evidence of P.Ws.1,4,5 and
6, as eyewitnesses. True it is that P.W.1 was closely related to the deceased.
But, on that ground, her evidence cannot be discarded, but it should be
subjected to careful scrutiny. Despite exercise of the test, the court is
thoroughly satisfied that her evidence inspired the confidence of the court.
P.Ws. have spoken in one voice to the fact that regarding the sharing of water
from the common Well, there was a wordy altercation and in that process, the
first accused has taken aruval, attacked the deceased and caused grievous
injuries. From their evidence, it would be clear that the injured was taken to
the Government Hospital, Manapparai immediately and as per the advise of the
medical person, he was taken to the Tiruchirappalli Government Hospital, where
he was given treatment and despite treatment, he died on 02.08.1998. At this
juncture, the medical opinion canvassed through the post-mortem Doctor stood
fully corroborated with the ocular testimony. Apart from that, in the instant
case, the fact that it was the first accused who attacked the deceased and
caused severe injuries and as a result, he died remained proved.
11.Now, the criticisms levelled by the learned counsel for the appellant
against the prosecution case have got to be considered. According to him, there
was a delay in registering the F.I.R. and also there was a delay in reaching the
F.I.R. to the court. The occurrence has taken place at about 10.00 a.m. on
31.07.1998 and the report was given at 2.00 p.m. The distance between the scene
of occurrence and the police station was 15 Kms. The court is of the considered
opinion that they are villagers and the time gap that was taken to cover the
distance from the village to Manapparai Police station is quite natural in the
ordinary course of events. The report was given at 2.00 p.m. and after
preparation of the F.I.R., it reached the court at about 4.00 p.m. and thus, no
delay is noticed.
12.So far as the comment that was made as to the non production of
accident register from the Manapparai Government Hospital is concerned, even as
per the evidence, immediately the deceased was given first aid and as per the
advice of the Doctor, he was taken to the Tiruchirappalli Government Hospital,
where he was admitted and was given treatment also. There is also sufficient
material to indicate that he succumbed to injuries at about 4.30 p.m. on
02.08.1998. P.W.3, the Doctor at Manapparai Government Hospital, has given
evidence that the deceased was conscious and was oriented. But, nowhere he has
stated that any statement was given by him or it was recorded by any official.
Under these circumstances, the non production of the accident register copy or
non recording of dying declaration would in no way affect the case of
prosecution.
13.In the instant case, P.W.1 has given the complaint to P.W.9, the Sub
Inspector of Police, who registered the case and P.W.1 was the eyewitness and
thus, she was competent to give the first information, wherein she has narrated
the entire story. The added circumstance is the registration of case in Crime
No.557 of 1998 under Sections 341 and 323 IPC on a complaint given by A-2. A-2,
in her complaint, has stated that she was attacked by the other party. Both the
cases registered in Crime No.556 of 1998 at the instance of P.W.1 and Crime
No.557 of 1998 at the instance of A-2 would clearly reveal that the occurrence
has taken place on 31.07.1998 at 10.00 a.m. at the place of occurrence, as put
forth by the prosecution, in which the accused were available. On investigation,
the Investigator found that Crime No.557 of 1998 was to be closed as mistake of
fact and Crime No.556 of 1998 was to be proceeded with. The injuries that were
sustained by the accused were superficial and simple. All the records pertaining
to Crime No.557 of 1998 were produced before the court, perused and considered.
Even the wound certificates of the first and second accused were also produced
and they were considered. Thus, it was a case where the prosecution placed all
the records pertaining to Crime Nos.556 and 557 of 1998, for the scrutiny of the
court. Hence, all the comments made by the learned counsel for the appellant
have got to be rejected. Hence, the prosecution had sufficient evidence pointing
to the guilt of the first accused/appellant that it was he who cut the deceased
with aruval and caused grievous injuries and as a direct consequences, he died.
14.So far as the second line of argument is concerned, the court is able
to see force in the contention put forth by the learned counsel for the
appellant. It is not in controversy that the occurrence has taken place at about
10.00 a.m. on 31.07.1998. At the time of occurrence, even as per the evidence
adduced by the prosecution, there was a wordy altercation between the first
accused and the deceased, regarding the sharing of water from the common Well.
The added circumstance was that the deceased pushed down A-2 and A-3 and they
fell down. Under these circumstances, due to quarrel and sudden provocation, the
first accused attacked the deceased with aruval. Hence, the act of the first
accused would not attract the penal provisions of murder, but it would be one
culpable homicide not amounting to murder. The act of the first accused would
attract the penal provision of Section 304(I) IPC and awarding a punishment of 7
years R.I. would meet the ends of justice.
15.Accordingly, the conviction and sentence imposed on the appellant/first
accused by the lower court under Section 302 IPC are set aside and instead, the
appellant/first accused is convicted under Section 304(I) IPC and sentenced to
undergo seven years R.I. The period of sentence already undergone by the
appellant is ordered to be given set off. The fine amount imposed on the
appellant under Section 302 IPC shall be treated as fine amount imposed under
Section 304(I) IPC. It is reported that the appellant/first accused is on bail
and hence the concerned Sessions Judge shall take steps to secure and commit him
to prison to undergo the remaining period of sentence.
16.With the above modification in conviction and sentence, this criminal
appeal is dismissed.
vvk
To
1.The I Additional Sessions Judge-cum-
Chief Judicial Magistrate,
Tiruchirapalli.
2.The Inspector of Police,
Manapparai Police Station,
Manapparai,
Trichy District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.