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 CRL.A.(MD) No.130 of 2005 Pushparaj .. Appellant vs Inspector of Police Aravakurichi Police Station Karur District Cr.No.202 of 2002 .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the District and Sessions Judge, Karur, in S.C.No.118 of 2003 dated 28.10.2004. !For Appellant : Mr.A.Padmanaban ^For Respondent : Mr.N.Senthurpandian Additional Public Prosecutor :JUDGMENT
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.)
The sole accused in a case of murder in S.C.No.118 of 2003 on the file of
the Sessions Division, Karur, on being found guilty as per the charge and
awarded life imprisonment along with a fine of Rs.1,000/- and default sentence,
has challenged the judgment of conviction and sentence in the course of this
appeal.
2.The short facts necessary for the disposal of this appeal can be stated
thus:
(a) The appellant/accused was employed under the deceased Kodandaraman in
his New Rajan Iyengar Bakery conducted by him at Chinnatharapuram. P.W.2 is the
wife and P.Ws.1, 3 and 4 are the children of the deceased. Previously, the
accused was employed under P.W.7 in his bakery, and on request by the deceased,
the accused was sent for the work under the deceased. The accused was asking
for enhancement of salary. The deceased was not amenable. On 28.11.2002 at
about 10.00 P.M., after the dinner, P.W.2 was sleeping in one room along with
the deceased, while P.Ws.1, 3 and 4 were in the other room. At about 3.30 A.M.
on 29.11.2002, they heard the distressing cry of the deceased. All of them woke
up to find the accused uttering the words “He was demanding for enhancement of
salary; but, the deceased was not ready to pay.” Immediately, the accused
attacked him with M.O.4, an iron pipe, on his head. Despite the attempt, P.Ws.1
to 4 could not catch him. He fled away from the place of occurrence. On
receipt of the message, P.W.11 went to the house, and on the dictation by P.W.1,
Ex.P1, the report, was written by P.W.11. Then, P.W.1 proceeded to the
respondent Police Station where P.W.15, the Sub Inspector of Police, was on duty
at about 5.30 A.M. On the strength of Ex.P1, the report, a case came to be
registered by the respondent police in Crime No.202/2002 under Sec.302 of I.P.C.
The express First Information Report, Ex.P13, was despatched to the Court.
(b) P.W.16, the Inspector of Police of the said Circle, on receipt of the
copy of the FIR, took up investigation, proceeded to the spot, made an
inspection and prepared an observation mahazar, Ex.P2, and a rough sketch,
Ex.P14. The dead body along with the scene of occurrence were photographed
through P.W.10, the Photographer. The photos and negatives are marked as M.Os.7
and 8 respectively. The Investigator recovered M.O.1, shirt, M.O.2, blanket,
and M.O.3, blanket piece, under a mahazar, Ex.P3. In the presence of witnesses
and panchayatdars, he conducted inquest on the dead body of Kodandaraman and
prepared an inquest report, which is marked as Ex.P15. The dead body was sent
to the Government Hospital along with a requisition, Ex.P7, for the purpose of
autopsy.
(c) P.W.9, the Medical Officer, attached to the Government Hospital,
Pallapatti, on receipt of the said requisition, conducted autopsy on the dead
body of Kodandaraman and found one injury. He issued a postmortem certificate,
Ex.P8, with his opinion that the deceased would appear to have died of shock and
haemorrhage due to the injury to vital organs.
(d) On 30.11.2002 at about 5.00 A.M., P.W.7 was in his house. At that
time, the doors were knocked, and when he opened the door, he found the accused.
The accused gave the narration of the incident, and immediately, P.W.7 took him
to the Police Station and handed over to the Police Officials at about 7.00 A.M.
on that day. During interrogation, he volunteered to give a confessional
statement, which was recorded in the presence of two witnesses. The admissible
part if marked as Ex.P4. Consequent upon the confessional statement, he
produced M.O.4, an iron pipe, and M.O.5, bloodstained shirt, which were
recovered under Ex.P5, the mahazar. He also produced a TVS 50 marked as M.O.6,
which was recovered under a mahazar, Ex.P6. The accused was sent for judicial
remand.
(e) All the material objects recovered from the place of occurrence and
from the accused, were subjected to chemical analysis by the Forensic Sciences
Department, which resulted in two reports namely Ex.P11, the Chemical Analyst’s
report, and Ex.P12, the Serologist’s report. P.W.17, the Inspector of Police,
took up further investigation. On completion of investigation, the Investigator
filed the final report.
3.The case was committed to Court of Session, and necessary charge was
framed. In order to substantiate the charge, the prosecution examined 17
witnesses and also relied on 15 exhibits and 8 material objects. On completion
of the evidence on the side of the prosecution, the accused was questioned under
Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence
of the prosecution witnesses, which he flatly denied as false. No defence
witness was examined. On hearing the arguments advanced and looking into the
materials available, the trial Court took the view that the prosecution has
proved the case beyond reasonable doubt, found the appellant/accused guilty as
per the charge and awarded life imprisonment along with the fine and default
sentence referred to above. Hence, this appeal at the instance of the
appellant.
4.The learned Counsel Mr.A.Padmanaban, advancing his arguments on behalf
of the appellant, would contend that P.Ws.1 to 4 are the wife and the children
of the deceased respectively; that they are very close relatives; that when
their evidence is scrutinized carefully, there are lot of discrepancies on the
vital particulars; that these discrepancies would got to the root of the matter;
that under the circumstances, the lower Court should have rejected their
evidence; that in the instant case, the medical evidence did not support the
prosecution case; that the appearance of the accused before P.W.7 and the fact
that it was he who took him to the Investigator and produced before him, and he
also gave a confessional statement, which was also recorded by the Investigator,
and following the same, the material objects were recovered are nothing but a
concocted story in order to strengthen the prosecution case, and thus, the lower
Court should have rejected the same; that the scientific evidence did not
support the prosecution case; and that in short, it can be stated that the
prosecution has not proved the case beyond reasonable doubt.
5.Added further the learned Counsel that even assuming that the
prosecution has proved the case that it was the accused who attacked him with
the iron pipe on his head and caused his death, the act of the accused would not
attract the penal provisions of murder; that as per the evidence available, he
demanded enhanced salary on the previous day, which was refused by the deceased,
and thus, there was a quarrel; that he gave a confessional statement which was
relied on by the prosecution and accepted by the lower Court; that it would be
quite evident that at the time when the demand of enhanced salary was made, not
only it was refused by the deceased, but also he used filthy language; that he
thought it shameful; that it was lingering in his mind, following which the
occurrence has taken place; that the filthy language used by the deceased,
provoked him; that the consequence was the attack made by him; that the weapon
used by him, was only an iron pipe; that only one blow was given, and death has
been caused; that under the circumstances, it would not attract the penal
provisions of murder; but, it would be culpable homicide not amounting to
murder, and hence, it has got to be considered by this Court.
6.In support of his contention, the learned Counsel relied on the
decisions of this Court reported in 1951 MWN (CR) 274 (MOTTAI THEVAN V. STATE)
and in 1972 L.W. (CRL.) 244 (THANDAVAN, IN RE.).
7.The Court heard the learned Additional Public Prosecutor on the above
contentions, paid its anxious consideration on the submissions made, and made a
thorough scrutiny of the available materials.
8.It is not a fact in controversy that in an incident that took place at
3.30 A.M. on 29.11.2002, the husband of P.W.2 one Kodandaraman, was done to
death. Following the registration of the case by P.W.15, the Sub Inspector of
Police, the Investigating Officer, P.W.16, took up investigation. He conducted
inquest on the dead body. Following the same, the dead body was subjected to
postmortem by P.W.9, the Doctor, who has categorically opined that the injury
that was caused on the skull and its corresponding internal injury caused the
death. The postmortem certificate is marked as Ex.P8. The contents of the
postmortem certificate and the evidence of the postmortem Doctor in respect of
the fact that death was caused due to the homicidal violence, remain
unchallenged. Under the circumstances, it can be factually recorded so.
9.In order to substantiate the case of the prosecution that it was the
accused who attacked Kodandaraman with the iron pipe and caused his death, the
prosecution fortunately had the evidence of four witnesses. They are P.Ws.1 to
4. P.Ws.1, 3 and 4 are the children sufficiently matured, and P.W.2 is the
wife. It is the case of the prosecution that the occurrence has taken place
inside the house, that too at about 3.30 A.M., when all of them were sleeping;
that they heard the distressing cry, woke up and found that he was demanding for
the enhanced salary, and the deceased was refusing; and that in that course, he
attacked him with the iron pipe. It is true that P.Ws.1 to 4 are close
relations of the deceased. This Court is mindful of the caution that merely
because of the relationship, their evidence cannot be discarded; but, the Court
must apply the test of careful scrutiny. Despite the exercise of that test,
this Court is satisfied with their evidence since it has inspired the confidence
of the Court. Despite the cross-examination, their evidence remained unshaken.
That apart, their ocular testimony stood in full corroboration of the medical
evidence. According to the postmortem Doctor, the injury that was caused on the
skull, and the corresponding internal injury have caused the death. In the case
on hand, the evidence of P.W.7 has got a role to play. P.W.7 was the former
employer of the accused. He could not have anything to grind. According to
P.W.7, on 30.11.2002 at about 5.00 A.M., the accused came to him and narrated
the incident, and it was he who took him to the Investigator and handed over to
him. Thus, it would be quite clear that it is an extra-judicial confession.
Following the same, on arrest, he came forward to give a confessional statement
which was recorded. Pursuant to the same, M.O.4, an iron pipe, M.O.5,
bloodstained shirt, and also M.O.6, the TVS 50, have been recovered. The
recovery of M.O.4, the weapon of crime, following the confessional statement,
would be pointing to the nexus between the crime and the accused. All would go
to show that the prosecution has proved the case beyond reasonable doubt. In
the face of the overwhelming evidence, the contentions put forth by the learned
Counsel for the appellant, do not carry any merit whatsoever, and they are to be
rejected. The lower Court has rightly found that it was the accused who
committed the crime.
10.Coming to the second line of argument that the act of the accused would
not attract the penal provisions of murder, the Court has to necessarily
disagree with the learned Counsel for the appellant. At the outset, the Court
must state that both the decisions relied on by the learned Counsel for the
appellant, cannot be applied to the present facts of the case. The occurrence
has taken place at 3.30 A.M. in the residential premises of the deceased, when
he was actually sleeping with his wife and three children. Even as per the
prosecution case, there was a demand for enhancement of salary on the previous
evening that was on 28.11.2002 at about 3.30 P.M., and there was a wordy duel.
Now, at this juncture, it is to be pointed out that it was not the case of the
accused that he left the work at that time; but, he was working there. The
contention put forth by the appellant’s side that the words used by the
deceased, were lingering in his mind, which provoked him, and the provocation
continued to be so, and due to that, he has acted so cannot be accepted even for
a moment. Had it been true that the use of the filthy language has provoked
him, he would have acted immediately, but not done so, and there was no sudden
provocation also. Now, it is to be further pointed out that the occurrence has
taken place at about 3.30 A.M., when the deceased was sleeping with his wife and
children in his residence, and it was the accused who took along with him an
iron pipe and attacked him. No material is available to show that the weapon of
crime was taken from the residence of the deceased, and the attack was made by
him; but, it was taken by him. Thus, it would be indicative of the fact that
the crime was also one premeditated. Had it not been so, there was no reason
for the accused to go to the residence of the deceased at about 3.30 A.M. and
that too, when he was sleeping. It was he who made him wake up and also began
to attack him. All would go to show that it was a planned act, and no question
of application of any other provision except Sec.302 of I.P.C., would arise. In
the instant case, the act of the accused is one of murder. The lower Court was
perfectly correct in applying the provisions of Sec.302 of I.P.C. and awarding
the life imprisonment along with the fine and default sentence. This Court is
unable to find anything to disturb the same either factually or legally.
11.Hence, this criminal appeal must fail and fails. Accordingly, the same
is dismissed.
To:
1.The District and Sessions Judge
Karur
2.The Inspector of Police
Aravakurichi Police Station
Karur District
(Cr.No.202/2002)
3.The Public Prosecutor
Madurai Bench of Madras High Court
nsv