IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25/11/2002
CORAM
THE HONOURABLE MR.JUSTICE N.DHINAKAR
AND
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
Criminal Appeal No.329 of 1998
Paulsamy .. Appellant
-vs-
State: rep. by the Inspector
of Police, Karivalam Vanthanallur
Police Station, Thirunelveli Dist. .. Respondent
Appeal against the judgment of the learned I Additional Sessions
Judge, Thirunelveli, made in S.C.No.360 of 1996 dated 23.3.1998.
!For Appellants : Mr.R.Sankarasubbu
^For Respondent : Mr.V.M.R.Rajendran
Addl. Public Prosecutor.
:J U D G M E N T
(Judgment of the Court was delivered by
F.M.IBRAHIM KALIFULLA, J.)
The sole accused is the appellant before us, who has been
proceeded against for the alleged offence on 7.12.95 at 7.00 p.m. when he is
stated to have caused the death of one Shanmugam. The appellant, hereinafter,
will be referred to as ‘the accused’. He was convicted and sentenced for life
imprisonment under Section 302 I.P.C., as against which, he has come forward
with this appeal.
2. The brief facts relating to the occurrence was that the
deceased and the accused are neighbours. They belong to the same place called
Azhagunachiyarpuram. About six months prior to the date of occurrence, the
brother of the accused, one Lingasamy is stated to have eloped with the wife
of P.W.1. Pursuant to which, a panchayat was convened, in which, the wife of
P.W.1 was restored to the matrimonial company of P.W.1. On the date of
occurrence, that is, on 7.12.95, at 7.0 0 a.m. when the mother of the accused
was fetching water at the water pump near her residence, the deceased also
stated to have went there to fetch water. A quarrel ensued between the mother
of the accused and the deceased. P.W.1 is stated to have pacified the quarrel
and brought back the deceased, who is his father. While so, on the same day,
around 7.00 p.m., when P.W.1, P.W.2 and one other maternal uncle of P.W.1
along with the deceased were talking in front of their house, when P.W.1 was
advising the deceased not to fight with the family of the accused, the accused
appeared there along with M.O.1, aruval, and by saying that he will close the
deceased, cut the deceased. When the deceased attempted to ward off the cut,
his hands were cut by the assault. The accused, thereafter, cut the deceased
on his neck, on the right flank and also at the back of the deceased. When
the witnesses shouted on seeing the attack on the deceased, the accused is
stated to have ran away towards west. When the deceased was checked, he was
found to be dead. Thereafter, P.W.1 went to Karivalam Vanthanallur police
station and gave Ex.P.1 complaint, which was registered by P.W.10, the
Sub-Inspector of Police, at 8.30 p.m. P.W.10 registered the complaint as
Crime No.427 of 1995 under Section 302 I.P.C. and prepared Ex.P.12, F.I.R.
and forwarded the same to the higher officials.
3. P.W.11, who was the Inspector of Police, on receipt of the
information about the registration of the crime, took up investigation and
visited the place of occurrence at 10.00 p.m. and prepared a rough sketch,
Ex.P.13. Thereafter, he also prepared Ex.P.2, the observation mahazar and
conducted the inquest between 11.30 and 2.00 a.m. of 7/8.12.95. Ex.P.16 is
the inquest report. He also examined the witnesses at the place and recovered
M.O.2, the blood-stained earth and M.O.3, the sample earth along with a white
towel, M.O.4 under Ex.P.3. He arrested the accused on 8.12.95 at 7.00 p.m.
in the presence of P.W.4 and based on the admissible portion of the statement,
Ex.P.4, given by the accused, who took the police party to a water tank at
Karivalam Vanthanallur around 7.45 p.m., where near a bush, M.O.1, the aruval,
was recovered along with M.O.5, the blood stained shirt, which were recovered
by P.W.11 under Ex.P.5. In between, P.W.11 sent the body of the deceased for
conducting necessary post-mortem along with a requisition.
4. P.W.6, the Civil Assistant Surgeon, Government Hospital,
Sankarankoil, conducted autopsy on the body of the deceased and noted the
following injuries:-
1. A cut injury of transverse 10 cm. x 4 cm. x 6 cm. over back of neck.
1/2 cm. below the hairline tailing off on the right side. The underlying
muscles and vessels are cut. The cut passed through ‘C.3’ vertebra, spinal
cord and vertebral arteries are cut correspondingly, 100 gms. Blood clots
present.
2. A cut injury 12 cm. x 10 cm. x 6 cm. oblique, starting from the ‘ C.7’
vertebral level over the back of chest, running downwards and outwards and
ends in a point 2 cm. below the inferior angle of scapula. The underlying
muscles and scapula are cut.
3. A stab wedge shaped 1/2 cm. x 2 cm. x 1 cm. outer aspect of lower 1/3
of right upper arm.
4. A cut incised wound 4 cm. x 1 cm. x 2 cm. vertical starting from the
root of middle finger upto the centre of right palm.
5. A cut incised wound starting 6 cm. x 3 cm. x 3 cm. over lower 1/3 rd of
ulnar border of left forearm muscles are cut correspondingly.
The doctor issued Ex.P.7, the post-mortem certificate. He has opined in his
report that the deceased would appear to have died of shock and haemorrhage
due to injury No.1.
5. P.W.11, continuing with his investigation, examined the
doctor on 13.12.95 and after examining the other witnesses, submitted his
final report on 29.2.96.
6. When the accused was questioned under Section 313 Cr.P.C.
on the incriminating circumstances appearing against him, he denied his
involvement in the murder of the deceased.
7. In the case on hand, by virtue of the medical evidence,
Ex.P.7 and that of the oral evidence of P.W.6, the doctor who conducted the
autopsy on the body of the deceased, there can be no two opinions that the
deceased died of homicidal violence.
8. When we come to the question of the complicity of the
accused to the death of the deceased, when the evidence of P.W.1 is examined,
we find that he has narrated the whole occurrence, which took place at 7.00
p.m. on 7.12.95, in a natural manner and nothing was brought out by way of
cross-examination to dislodge the said version of P.W.1. In fact, P.W.2 also
supports the version of P.W.1 without any deviation. Though it was attempted
to point out that P.W.2, at the time of incident, went inside the house to
fetch a stick and therefore, he could not have witnessed the incident, a
reading of P.W.2’s evidence on the whole sufficiently demonstrate that on
seeing the accused inflicting the cut injuries on the deceased, P.W.2 wanted
to save the deceased and in that view, he went inside the house to fetch a
stick and by the time he could fetch the stick, the accused ran away from the
place of occurrence. Therefore, we are unable to accept the stand of the
accused that P.W.2 could not have witnessed the incident.
9. As regards the contention that P.W.1 himself has admitted
in his evidence that the accused was present in the police station on the very
date of the incident at 11.00 p.m. and therefore, the arrest of the accused
could not have been made on 8.12.95, we will have to hold that when the
evidence of P.W.1, who was the eye witness to the occurrence, was convincing
and nothing was brought out insofar as that part of the evidence, which
established the involvement of the accused insofar as the infliction of the
cut injuries on the deceased, merely because certain infirmities were pointed
out with regard to the arrest of the accused as to whether it was on 8.12.95
or the accused could have been detained on that day itself, that is, on the
date of occurrence, pales into insignificance. In fact, we do not want to
give any importance to the arrest of the accused and the followed recovery
under Ex.P.4. When we go by the version of P.W.1 supported by P.W.2 , who
have witnessed the occurrence, which evidence sufficiently established the
involvement of the accused in the injuries inflicted upon the deceased,
without any scope for ambiguity, by relying upon that very evidence itself, we
hold that the accused and the accused alone was responsible in regard to the
injuries inflicted upon the deceased. When we consider the evidence of P.W.6,
the doctor, who conducted the autopsy on the body of the deceased, we find
that he has categorically stated that the first injury caused on the deceased
was sufficient enough to cause the death of the deceased and that the said
injury could have been caused by M.O.1. In such circumstances, when the
evidence on record clinchingly establish the death of the deceased and the
complicity of the accused to the death of the deceased, we are unable to
accept the stand of the accused that he had nothing to do with the offence.
10. The learned counsel for the appellant has filed a
petition in Crl.M.P.No.12059 of 2002 seeking permission of this Court to let
in additional evidence in order to show that the accused was a juvenile and
therefore, was entitled to the protection under the Juvenile Justice Act,
1986. Section 2(e) of the said Act defines a ‘delinquent Juvenile’ as a
juvenile who has been found to have committed an offence and Section 2(h)
defines a ‘juvenile’ to mean a boy who has not attained the age of sixteen
years or a girl who has not attained the age of eighteen years. Therefore, if
the accused wants to invoke the benefits conferred under the provisions of the
Juvenile Justice Act, 1986 , he should satisfy that he was a ‘delinquent
juvenile’ and a ‘ juvenile’ as defined under the aforesaid Act. When
admittedly the accused was 19 years old and even as per the birth certificate
produced by him, his date of birth was 9.8.76, the accused was far beyond 16
years on the date of occurrence, that is, on 7.12.95. Moreover, throughout
the proceedings before the trial Court, the accused never questioned his age
or took up the stand that he could be treated as a juvenile and tried as such;
on the contrary, when he was questioned under Section 313 Cr.P.C., he has
admitted his age to be of 22 years. Therefore, we do not find any scope for
invoking the provisions of the Juvenile Justice Act, 1986.
11. Under the above circumstances, we do not find any scope
for interfering with the conviction and sentence imposed on the accused. The
appeal is, accordingly, dismissed. Consequently, Crl.M.P.No.12059 of 2002 is
also dismissed.
Index: Yes
Website: Yes
sra
To
1.The I Additional Sessions Judge, Tirunelveli.
2.-do- Thro’ The Principal Sessions Judge, Tirunelveli.
3.The Judicial Magistrate, Sankarankoil..
4.-do- Thro’ The Chief Judicial Magistrate, Tirunelveli.
5.The Inspector of Police, Karivalam Vanthanallur Police Station, Tirunelveli
District.
6.The District Collector, Tirunelveli.
7.The Director of General of Police, Madras-4.
8.The Superintendent, Central Prison, Palayamkottai.
9.The Public Prosecutor, High Court, Madras.