BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11/01/2010
CORAM
THE HONOURABLE MR. JUSTICE P.MURGESEN
and
THE HONOURABLE MR. JUSTICE RAJA ELANGO
CRL.A.(MD)No.557 OF 2008
1.Rajapandi
2.Balaraman ... Appellants/A1 and A4
Vs
State through the Inspector of Police,
Thirumangalam Taluk Police Station.
In Crime No.18 of 2008 ... Respondent/Complainant
Criminal Appeal filed under Section 374 Cr.P.C against the judgment of
conviction and sentence passed by the learned I Additional Sessions Judge,
Madurai, dated 02.12.2008 made in S.C.No.237 of 2008.
!For Appellants .... Mr.T.K.Gopalan
^For Respondent .... Mr.P.N.Pandidurai
Additional Public Prosecutor
*****
:JUDGMENT
(Judgment of the Court was passed by P.MURGESEN, J)
This Criminal Appeal is directed against the conviction and sentence
imposed by the learned I Additional Sessions Judge, Madurai, dated 02.12.2008,
made in S.C.No.237 of 2008, on the appellant/A1 and A4.
2.The case of the prosecution is as under:-
P.W.1-Lakhsmi is the resident of Sengapadai. Her son is deceased
Venkidasamy. A1 to A3 are the children of Venkidasamy. A4 is the brother-in-law
of deceased Venkidasamy. Just prior to the occurrence, the deceased assaulted
his wife Lakhsmi. So, on the fateful day, i.e., on 28.01.2008 at about 11.00
P.M., the accused entered into the house of the deceased with a help of ladder
and assaulted him. P.W.2-Krishnasamy is the younger brother of Venkidasamy. He
was present when the accused was attacked and then the body was thrown inside
the house.
3.In the early morning, P.W.1 found him dead. She informed it to P.W.8-
Veluchamy, the Village Assistant. P.W.8 in turn informed the same to P.W.7-
Arichandran, the Village Administrative Officer. P.W.8 informed about the
occurrence to police. P.W.6-Ramaraj, who is working in the Tamil Nadu
Electricity Board, P.W.4-Dhanasekaran and P.W.5-Ramuthai are the residents of
Senkapadai.
4.P.W.14-Rajamanikam, the Sub Inspector of Police, Thirumangalam Taluk
Police Station, received the telephonic information at about 8.00 A.M. on
29.01.2008 and went to the scene of occurrence. P.W.1-Lakshmi gave Ex.P.1-
written complaint to P.W.14. P.W.14 received the complaint and returned to
Thirumangalam Taluk Police Station at 10.00 A.M. and registered a case in Crime
No.18 of 2008 under Section 302 I.P.C. Ex.P.9 is the printed F.I.R. The
printed F.I.R. was despatched to the Judicial Magistrate through P.W.13-
Ramuthai, Police Constable. She also sent the copy of the F.I.R. to the
Investigating officer.
5.Then, the investigation was taken over by P.W.16-Rajendran, Inspector of
Police and he went to the scene of occurrence and prepared Ex.P.2-Observation
Mahazar and Ex.P.11-Rough Sketch in the presence of P.W.7 and P.W.8. Then, he
recovered M.O.1-portion of the cement floor with blood stains and M.O.2-portion
of the cement floor without blood stains under Ex.P.3-Mahazar in the presence of
the said witnesses. Then, he conducted inquest over the body of the deceased and
prepared Ex.P.12-Inquest Report. P.W.10-Durairaj took photographs on the body
of the deceased Venkitasamy. M.O.5 series is the Photographs and Negatives.
Then, P.W.16 sent the body of the deceased for conducting postmortem.
6.Postmortem was conducted by P.W.15-Dr.Selvaraj. He examined the body of
the deceased and he gave Ex.P.10-postmortem certificate. On examination he found
the following the following injuries:
“External Injuries: 1) A lacerated wound (Rt) Occipital Bone 4cm x 2cm x 1cm
depth.
2) Deformity of (Rt) leg and Lacerated wound (Rt) leg 3cm x 2cm size.
3) Bone exposed lacerated wound over the (Lt) Leg – Lower third 5cm x 2cm size.
4) Abrasion Left side shoulder
5) Contusion – Two separate contusions over the Right side Back of chest (?
Stick Injury).
6) # of Lower end of Radius – (Lt) hand.
7) # Ribs on (Rt) side chest.
Internal Injuries: 1)SKULL – # of occipital Bone and Blood clot over the
Brain.”
7.After postmortem, P.W.16 recovered M.O.6-Blood stained dothi, M.O.7-
Blood stained underwear and M.O.8-Loin rope from the body of the deceased
through head constable. Then, P.W.16 sent the Material Objects to Court through
Ex.P.13-Form 95.
8.On 30.01.2008, at 9.00 A.M., he arrested A1-Rajapandi near the big
bridge at Sengapadi and recorded his voluntary confession statement in the
presence of P.W.7 and P.W.8. The admissible portion of the confession statement
of A4 is Ex.P.14. On the basis of the confession statement, he recovered M.O.3-
Iron road under Ex.P.4-Mahazar. Then, at 11.00 A.M., he arrested A2-Gokilamani
and A3-Rajakumari, who were identified by A1. Then, he handed over the accused
to judicial custody and the material object to Court.
9.On 31.01.2008 at 6.45 A.M., he arrested A4-Balaraman near the Melakottai
diversion and recorded his voluntary confession statement in the presence of
P.W.9-Murugan Village Administrative Officer of Melakottai Village and Village
Assistant Pandi. The admissible portion of the confession statement of A4 is
Ex.P.16. On the basis of the confession statement, M.O.4-Manchanathi stick was
recovered under Ex.P.5-Mahazar. Then, he handed over the accused to judicial
custody and the material object to Court.
10.Then, P.W.16 sent a requisition letter to the Judicial Magistrate to
sent the material objects to forensic lab for chemical examination. Based on
that the Magistrate sent the properties for chemical examination. Ex.P.6 is the
office copy of the letter sent by Magistrate to forensic lab. P.W.11-Balaji was
the Head Clerk of Judicial Magistrate Court, Thirumangalam. P.W.12-Mahalakshmi
is the Scientific Assistant Grade-I of Madurai Forensic Laboratory. Ex.P.7 is
the Serological report and Ex.P.8 is the Chemical Examination Report received by
the Court. After enquiring the witnesses and after completing the investigation,
on 23.04.2001 P.W.16 filed charge sheet against the accused under Sections 302
r/w 34 of I.P.C.
11.Before the trial Court, P.Ws.1 to 16 were examined and Exs.P.1 to P.15
and M.Os.1 to 8 were marked. All the incriminating pieces of evidence let in by
the prosecution witnesses were put to the accused under Section 313(1) of the
Code of Criminal Procedure questioning the accused, and the accused denied the
same as false. There was no oral or documentary evidence adduced on the side of
the accused.
12.On consideration of the evidence on record, the learned I Additional
Sessions Judge, Madurai found the appellant/A1 and A4 guilty under Sections 302
r/w 34 I.P.C. and sentenced them to undergo life imprisonment and to pay a fine
of Rs.2,000/- each in default to undergo Rigorous Imprisonment for 2 months
each. However, the trial Court acquitted A2 and A3 from the charge under Section
302 r/w 34 I.P.C.
13.Challenging the judgment of the learned I Additional Sessions Judge,
Madurai the present Criminal Appeal has been filed by the appellants/A1 and A4.
14.Now the question that needs to be answered in this appeal is whether
the appellants/A1 and A4 could be held guilty under Section 302 r/w 34 I.P.C.
15.P.W.1-Lakhsmi is the resident of Sengapadai village. Her son is
deceased Venkidasamy. A1 to A3 are the children and A4 is the brother-in-law of
deceased Venkidasamy. The motive for the murder of the deceased, according to
the prosecution is on 28.01.2008, prior to the occurrence, the deceased attacked
his wife Lakshmi. So, all the accused joined together and entered into the house
of the deceased with the help of ladder and assaulted the victim, which resulted
in his death. Then the body was sent for conducting postmortem and postmortem
was conducted. So, the death of deceased Venkidasamy is not natural.
16.Learned Senior counsel Mr.T.K.Gopalan would submit that P.W.1 is not an
eye witness and a reliable witness. P.W.1-Lakshmi is a 75 years old lady. She
saw the occurrence. The occurrence was also witnessed by P.W.2-Krishnasamy, the
brother of the deceased and P.W.5-Ramuthai. P.W.1’s evidence was corroborated by
P.W.2 and P.W.5. So, her evidence cannot be rejected as unreliable.
17.Learned counsel for the appellants further submitted there is doubt in
the prosecution case because F.I.R. is a belated one. According to the
prosecution, on 28.01.2008 at 11.00 P.M., all the accused entered into the house
of the deceased and took him out and attacked him with iron rod and stick and
then put him into his house. On the early morning P.W.1 found his son
Venkidasamy dead. Then, she informed the same to P.W.8, the village Assistant
and P.W.8 in turn inform the same to P.W.7, the Village Administrative Officer.
Then, P.W.7 informed the same to Police and P.W.14-Sub Inspector of Police came
to the scene of occurrence and received the complaint from P.W.1 and the
criminal law was set in motion. It is true that P.W.1 is an old lady. She is
helpless and the village being a hamlet far away from the police station. She
also affixed thumb impression on the complaint. So, she cannot reach the police
station in the night and lodge the complaint. So, on the early morning she
informed about the occurrence to the Village Assistant and the Village Assistant
in turn inform the same to the Village Administrative Officer. Then the Village
Administrative Officer informed the same to the Police and the police came to
the scene of occurrence and received the complaint. So, the said delay cannot
be held as fatal to the case of the prosecution.
18.Learned counsel for the appellants would also submit that there is
contradictions between the witnesses about the place of complaint. No doubt,
P.W.1 and P.W.2 are rustic villagers. They cannot be expected to face the
powerful cross examination of an efficient and able counsel. Further, P.W.1 is
aged 75 years. Due to lapse of time they may have some lapse of memory. But
absolutely there is no motive for P.W.1 to spoke against her grand children that
they joined with A4 and attacked the deceased. The Hon’ble Supreme Court has
repeatedly held that it is the duty of the Court to remove the grain from the
chaff. If the said principle is applied to the case on hand, the minor
contradictions in the evidence of rustic villagers cannot affect the case of the
prosecution. So, on careful consideration of the evidence on record, this Court
is of the considered view that since the accused attacked his wife, A1-his son
and A4-his brother-in-law attacked him with iron rod and Manchanathi Stick.
19.Learned counsel for the appellant also raised a doubt about the
recovery of the weapon from A1 and A4. No doubt P.W.7 has deposed that M.O.3-
Iron rod and M.O.4-Manchanathi stick were recovered from A1 and P.W.9 has
deposed that M.O.4-Manchanathi stick was recovered from A4. The discrepancies
between the witnesses regarding the recovery cannot be a ground to reject the
case of the prosecution altogether. Even if recovery is not recognized, the old
lady who spoke against her own close relative that they attacked the deceased
with weapons, which cannot be easily brushed aside. Hence, we find no reason to
suspect the evidence of P.W.1 that A1 attacked the deceased with Iron Rod and A4
attacked the deceased with Manchanathi stick.
20.Further, on careful consideration of the evidence on record, this Court
is able to find that there is no motive for A1 and A4 to attack the deceased.
Further, the weapons used are also not deadly weapons. Since the deceased
attacked the mother of A1 and sister of A4, they attacked the deceased with iron
rod and Manchanathi stick. Section 304 I.P.C. reads as follows:
“304.Punishment for culpable homicide not amounting to murder – Whoever commits
culpable homicide not amounting to murder, shall be punished with imprisonment
for life, or imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine, if the act by which the death is
caused is done with the intention of causing death or of causing such bodily
injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to
ten years, or with fine, or with both, if the act is done with the knowledge
that it is likely to cause death, but without any intention to cause death, or
to cause such bodily injury as is likely to cause death.”
21.So, on careful consideration of the evidence on record, we are of the
considered opinion that it is proved beyond reasonable doubt that the
appellant/A1 and A4 due to the attack of the wife of the deceased by the
deceased, attacked the deceased with Iron rod and Manchanathi stick, knowing the
consequences, which resulted in the death of the deceased. But, they had no
intention to murder him. So, they are liable to be punished under Section
304(ii) instead of Section 302 r/w 34 I.P.C.
22.Accordingly, the Criminal Appeal is partly allowed and the conviction
of the appellant/A1 and A4 under Section 302 r/w 34 I.P.C. by the Trial Court is
modified to one under Section 304(ii) I.P.C. and the sentence of life
imprisonment with a fine of Rs.2,000/- each in default to undergo Rigorous
Imprisonment for 2 months each imposed by the trial Court stands modified to 3
years Rigorous Imprisonment with a fine of Rs.2,000/- each in default to undergo
Rigorous Imprisonment for 2 months each. The period of imprisonment already
undergone by the appellant/A1 and A4 shall be given set off.
sj
To
1.The I Additional Sessions Judge,
Madurai.
2.The Inspector of Police,
Thirumangalam Taluk Police Station.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.