BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/7/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY CRL.A.(MD) No.347 of 2009 Pitchandi .. Appellant vs State rep. by The Inspector of Police Vijayanarayanam Police Station Cr.No.76 of 2007 Tirunelveli District .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the I Additional Sessions Judge, Tirunelveli, made in S.C.No.144 of 2008 dated 23.10.2009. !For Appellant ... Mr.V.Kathirvelu ^For Respondent ... Mr.M.Daniel Manoharan Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM, J.)
This appeal challenges a judgment of the I Additional Sessions Division,
Tirunelveli, made in S.C.No.144 of 2008 whereby the appellant shown as A-1, who
stood charged along with two others ranked as A-2 and A-3, was found guilty and
awarded punishment as follows:
ACCUSED CHARGES FINDING PUNISHMENT
A-1 to A-3 447 IPC A-1 guilty A-1 - 3 months SI
A-2 & A-3 not guilty A-2 & A-3 acquitted
A-1 302 IPC Guilty Life imprisonment along with a
fine of Rs.1000/- and default
sentence
A-2 & A-3 302 r/w 35 IPC Not guilty Acquitted
A-1 to A-3 506(ii) IPC Not guilty Acquitted
2.The short facts necessary for the disposal of this appeal can be stated
as follows:
(a) P.W.1 is a native of Andalkulam near Vijayanarayanam within the
jurisdiction of the respondent police. A-2 and A-3 are the associates of A-1.
P.W.1 is the son of the deceased Ramasubbu. The sister of the appellant was
given in marriage to the brother-in-law of the deceased. On 20.5.2007, P.W.1
and his father, the deceased, went to the field for irrigating the paddy crops.
At that time, P.Ws.2 and 3 were also available. At about 2.45 P.M., A-1 armed
with aruval and A-2 and A-3 armed with sticks, came there, and A-1 attacked the
deceased on the head and hand causing injuries to the fingers. A-2 and A-3
attacked him on different parts of the body. This was witnessed by P.Ws.1 to 3.
Immediately, they left the place of occurrence.
(b) P.W.1 took the severely injured to the Government Hospital where he
was declared dead. On intimation from the hospital, P.W.13, the Sub Inspector
of Police, attached to the respondent police station, proceeded to the hospital,
recorded the statement of P.W.1, marked as Ex.P1, returned to the Station and
registered a case in Crime No.76 of 2007 under Sections 447, 294(b), 302 and
506(2) of IPC. The printed FIR, Ex.P17, was despatched to the Court.
(c) On receipt of the copy of the FIR, P.W.14, the Inspector of Police of
that Circle, proceeded to the spot, made an inspection and prepared an
observation mahazar, Ex.P18, and also a rough sketch, Ex.P19. The sample earth,
bloodstained earth and other material objects were recovered from the place of
occurrence. Then he conducted inquest on the dead body of Ramasubbu in the
presence of witnesses and panchayatdars and prepared an inquest report, Ex.P20.
The statements of the witnesses were also recorded as required by law. A
requisition was given to the hospital authorities for the purpose of autopsy.
(d) P.W.9, the Assistant Professor, Forensic Medicine Department,
Tirunelveli Medical College, on receipt of the requisition, has conducted
autopsy on the dead body of Ramasubbu and has noted the following injuries:
“(1) 6 x 1 cm x bone deep horizontal cut injury seen on the mid frontal region.
It is seen 13 cm from the root of nose and 15 cm away from the upper part of
left external ear.
(2) 3 x 1 cm x bone deep vertical cut injury seen on the right parietal region.
It is seen 13 cm away from the right external ear and 19 cm above occipital
protuberance.
(3) 3 x 1 cm x bone deep cut injury seen on the lower part of right leg. It is
seen 10 cm above and away from the right ankle inner aspect.
(4) 3 x 1 cm x bone deep cut injury seen on the web space of right 3rd and 4th
finger. Underlying muscles, vessels, nerves and bones cut at site.
(5) Right forearm and wrist contused over an area of 19 x 10 cm x 1 cm.
(6) 13 x 8 x 1 cm contusion seen on the upper part of outer aspect of right arm.
(7) 23 x 13 x 2 cm contusion seen on the outer aspect of upper half of left arm.
(8) 38 x 20 x 2 cm contusion seen on the upper part of entire left back.
(9) 23 x 15 x 2 cm contusion seen on the upper part of entire right back.
(10) 4 x 1 cm abrasion seen on the back of middle of right forearm.
(11) 4 x 5 cm abrasion seen on the back of middle of forearm.
(12) 16 x 10 x 2 cm contusion seen on the entity left elbow, lower part of left
arm and upper part of left forearm.
(13) 3 x 5 cm abrasion seen on the outer aspect of lower part of left arm.
On dissection of scalp: 14 x 10 cm sub scalpal bruising seen on the mid frontal,
bi-parietal and occipital region. Right temporal is bruised.”
The Doctor has issued a postmortem certificate, Ex.P12, wherein he has opined
that the deceased would appear to have died of shock and haemorrhage due to
blunt injury to upper limbs and back.
(e) The further investigation was taken up by P.W.15, the Inspector of
Police. Pending investigation, the Investigator came to know that A-1
surrendered before the Judicial Magistrate’s Court, Theni. Then he filed an
application for police custody which was ordered, and A-1 was taken to police
custody, during which he came forward to give a confessional statement
voluntarily. The same was recorded in the presence of witnesses. The
admissible part is marked as Ex.P5. Pursuant to the same, he produced M.O.1,
aruval, which was recovered under a cover of mahazar, Ex.P21. A-2 also
surrendered before the Court, and police custody was sought for. The same was
ordered. A-2 was taken to police custody, and at the time of interrogation, he
gave a confessional statement voluntarily. The same was recorded. Ex.P11 is
the admissible part of the confession of A-2. He produced a motorcycle, M.O.9,
which was recovered under a cover of mahazar.
(f) All the material objects including M.O.1, aruval, were subjected to
chemical analysis by the Forensic Sciences Department on a requisition given by
the Investigator through the concerned Judicial Magistrate’s Court, which
brought forth two reports namely Ex.P15, the chemical analyst’s report, and
Ex.P16, the serologist’s report.
(g) P.W.16, the Inspector of Police, took up further investigation. He
examined the witnesses and recorded their statements. On completion of
investigation, the Investigator filed the final report.
3.The case was committed to Court of Session, and necessary charges were
framed. In order to substantiate the charges, the prosecution examined 16
witnesses and also relied on 23 exhibits and 9 material objects. On completion
of the evidence on the side of the prosecution, the accused were questioned
under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the
evidence of the prosecution witnesses, which they flatly denied as false. One
witness was examined and one document was marked on their side. The trial Court
heard the arguments advanced on either side, and took the view that the
prosecution has proved the case beyond reasonable doubt in respect of the
appellant/A-1 and hence found him guilty under Sections 447 and 302 of IPC and
awarded punishment as referred to above. So far as the other charge is
concerned, A-1 was acquitted of the same. As regards A-2 and a-3, they are
acquitted by the trial Judge of all the charges. Under the circumstances, this
appeal has arisen at the instance of A-1 before this Court.
4.Advancing arguments on behalf of the appellant, the learned Counsel
Mr.V.Kathirvelu would submit that the occurrence, according to the prosecution,
has taken place at about 2.45 P.M. on 20.5.2007; that according to P.Ws.1 to 3,
all the three accused have participated in the crime; but, the trial Judge was
not ready to believe the evidence put forth by P.Ws.1 to 3 and acquitted A-2 and
A-3; that the postmortem Doctor has given a certificate to the effect that the
death was actually caused due to the injuries sustained on the back and upper
limbs and also due to the shock and haemorrhage; that it would be quite clear
that the injuries which resulted in the death of the deceased, were actually
caused by A-2 and A-3; but the trial Judge has not believed the evidence of
P.Ws.1 to 3 and acquitted them; that under the circumstances, the same reasons
would be applicable to A-1, the appellant herein, also and hence he should have
been acquitted.
5.The learned Counsel would further add that the prosecution came forward
with a motive attributed to A-1, which was actually unreliable; that it is an
admitted position that the sister of A-1 was given in marriage to the brother-
in-law of the deceased, and they were living apart; that according to the
prosecution, arrangements were being made for his second marriage, and apart
from that, the deceased was also making some attempts to sell the property at
Madras which belonged to the brother-in-law, and thus he was aggrieved; but no
evidence was forthcoming in that regard; that the occurrence has taken place at
about 2.45 P.M.; that according to the prosecution case, A-1 caused two injuries
on the head, and A-2 and A-3 attacked him with sticks on different parts of the
body; that P.W.2 has deposed that he was available at the spot, and thereafter,
he went to the nearby village, took a taxi, returned to the scene of occurrence
at about 4.45 P.M. and took the deceased to the Government Hospital,
Palayamkottai, where he was examined by the Doctor at about 6.20 P.M. and was
declared dead; that it would be quite clear that P.Ws.1 to 3 could not have been
in the place of occurrence at all; that according to P.W.1, they took food in
the house before they started at 1.00 P.M.; that P.W.9, the Doctor, who
conducted postmortem, has categorically stated that the liquid food was found in
the stomach of the deceased, and half an hour or one hour prior to the autopsy,
he should have taken food; that if to be so, the occurrence could not have taken
place at 2.45 P.M. as put forth by the prosecution; that it should have taken
place at a different time, and thus it cannot be believed.
6.Added further the learned Counsel that even assuming that the
prosecution has proved the factual position that A-1 attacked him with the
aruval on the head, the act of A-1 would not attract the penal provision of
murder, and at best, it would attract the penal provision of Sec.326 of IPC for
causing grievous hurt; that according to the Doctor, P.W.9, cut injuries were
found on the head; but the injuries that were actually sustained on the back and
also the upper limbs were responsible for causing death, and if to be so, the
act of A-1 did not lead to the death of the deceased; and that under the
circumstances, the Court has to consider that the act of A-1 would not attract
the penal provision of murder.
7.In the further line of arguments, the learned Counsel would submit that
in the case on hand, according to the prosecution, the sister of A-1 was given
in marriage to the brother-in-law of the deceased, and they were living apart;
that the accused felt that the deceased was responsible for the same; that apart
from that, the brother-in-law of the deceased owned an immovable property at
Madras, and the deceased was making arrangements for sale of that property, and
if sold, the sister of A-1 would be without any means to follow; that under the
circumstances, he was really aggrieved; that being provoked by the said
circumstances, he has acted so, and thus the act of A-1 would not attract the
penal provision of murder, and this has got to be considered by the Court.
8.The Court heard the learned Additional Public Prosecutor on all the
above contentions and paid its anxious consideration on the submissions made.
9.It is not in controversy that the father of P.W.1 by name Ramasubbu, was
severely injured in an incident that had taken place on 20.5.2007 at about 2.45
P.M. Immediately, he was taken to the Government Hospital, Palayamkottai, in a
taxi, and the Doctor on medical examination, declared him dead. The fact that
the death was due to homicidal violence as put forth by the prosecution was
never disputed by the appellant. In order to substantiate the said fact, the
prosecution has examined the postmortem Doctor as P.W.9 apart from marking the
postmortem certificate as Ex.P12 to that effect. All would clearly indicate
that the prosecution was successful enough in proving the fact that he died out
of homicidal violence.
10.In order to substantiate that it was the appellant/A-1 who attacked him
with an aruval at the time of occurrence, and two other accused also attacked
him with sticks, the prosecution relied on the evidence of the eyewitnesses who
are P.Ws.1 to 3. The trial Judge was not ready to believe the evidence of these
witnesses in respect of the accusation made against A-2 and A-3 since there were
lot of discrepancies on the material particulars. But, the trial Judge has
taken a view that the prosecution has proved the charges under Sec.447 and 302
of IPC as far as A-1 is concerned. According to P.Ws.1 to 3, at the time of
occurrence, they were with the deceased in the field, and A-1 came there along
with others with an aruval and attacked him on the head, and he sustained
injuries. When the postmortem certificate is looked into, the corresponding
injuries are found on the skull of the deceased. Further, the ocular testimony
of these witnesses stood fully corroborated by the medical opinion canvassed.
Yet another circumstance which was against the appellant/A-1 was the recovery of
the weapon of crime, namely aruval, from A-1 on his confession in the presence
of P.W.7. P.W.7 despite cross-examination, has stood the test, and thus his
evidence was available for the prosecution. From all these evidence put forth
by the prosecution before the trial Court, it would be quite evident that A-1
attacked the deceased with the aruval on the head and caused injuries.
11.Now the contention put forth by the learned Counsel for the appellant
relying on the medical opinion canvassed through the postmortem Doctor and the
certificate, that the injury that was caused by A-1 did not lead to the death
cannot be accepted for the simple reason that even the postmortem certificate
reads “the deceased would appear to have died of shock and haemorrhage due to
blunt injury to upper limbs and back.” According to the prosecution, A-1 caused
injuries on the head and also on the hand, and corresponding injuries are also
noticed in the postmortem certificate. The injuries that have been caused on
the limbs and back which were attributed to A-2 and A-3, did not make any
bleeding. On the contrary, as regards the injuries that were caused by A-1 on
the head and also on the hand fingers, cut injuries are noticed, and bleeding
was available, and it could have caused death. The Doctor has given his opinion
that he died out of shock and haemorrhage also. Under the circumstances, the
contention put forth by the learned Counsel for the appellant that the injuries
caused by A-1, could not have caused death cannot be accepted.
12.The next contention put forth by the learned Counsel that the appellant
had got sufficient provocation to act so cannot also be accepted for the reason
that it is an admitted position that the sister of A-1 was given in marriage to
the brother-in-law of the deceased, and actually they have got separated and
were living apart. A-1 came to know, according to the Counsel, that the
arrangements for the second marriage were actually going on for the brother-in-
law of the deceased, and such arrangements were actually made by the deceased.
If to be so, there were so many ways possible to bring his brother-in-law to
order, and this was not the way what was expected of by the appellant/ A-1.
Apart from that, according to the learned Counsel, the deceased was making
arrangements to sell the property of his brother-in-law situated at Chennai, and
if done, the sister of the appellant/A-1 would be deserted without any means to
follow, and under the circumstances, he was actually provoked. This Court is of
the view that the same cannot be taken as provocation, much less sudden
provocation to do such an act. Therefore, that contention also cannot be
accepted.
13.After looking into the evidence available, this Court is of the
considered opinion that according to the prosecution, A-1 to A-3 have
contributed, and they have all attacked. Viewing the case of the prosecution
from the medical opinion canvassed, this Court is of the considered opinion that
the act of appellant/A-1 cannot be said to be one of murder, but it would fall
under Sec.304 (Part I) of IPC and awarding a punishment of 7 years Rigorous
Imprisonment would meet the ends of justice.
14.Accordingly, the conviction and sentence of life imprisonment imposed
by the trial Court on the appellant/A-1, under Sec.302 of IPC are set aside, and
instead he is convicted under Sec.304 (Part I) of IPC and is directed to undergo
seven years Rigorous Imprisonment. The sentence already undergone by him, shall
be given set off. The fine amount imposed by the trial Court, will hold good.
15.The conviction and sentence imposed by the trial Court on A-1, under
Sec.447 of IPC are confirmed.
16.In the result, this criminal appeal is, accordingly, disposed of.
nsv
To
1.The I Additional Sessions Judge
Tirunelveli
2.The Inspector of Police
Vijayanarayanam Police Station
Cr.No.76 of 2007
Tirunelveli District
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai
4.The Section Officer
Criminal Section