IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.129 OF 2007 Saminathan .. Appellant Vs. State by Inspector of Police, Pallikonda Police Station, Vellore District (Crime No.415/2004) .. Respondent This criminal appeal has been preferred under Section 374 Cr.P.C. against the judgment of the learned Additional District and Sessions Judge (Fast Track Court), Vellore made in S.C.No.233 of 2005, dated 30.11.2006. For Appellant : Mr.K.S.Rajagopalan For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT
(The judgment of the Court was delivered by
This appeal challenges the judgment of the Additional Sessions Division, Fast Track Court, Vellore made in S.C.No.233 of 2005, whereby the appellant/sole accused stood charged under Section 302 IPC, tried, found guilty as per the charge of murder and awarded punishment of life imprisonment and to pay a fine of Rs.500/-, in default to undergo 3 months R.I.
2.The short facts necessary for the disposal of this appeal could be stated thus:
a)P.W.1 was living with his wife at Chinnakenganallur Arundathi Colony. He was doing cobbler job. The shop of P.W.1 is situated near the shop of the accused. On 16.10.2004 at about 6.00 p.m., the deceased Samundi, who was in drunken mood, came to the bazaar and was quarrelling for his cooli. He was also uttering filthy language in the public place. At that time, one Kannaudaiyar and Chinnappa Mudaliar were sitting by the side and Kannaudaiyar warned the deceased. At that time, the accused warned him to go from the place, for which the deceased replied that the accused himself is having a shop in poramboke land and he should not speak anything. Being provoked by the words, the accused took the stick and attacked the deceased on his head. The deceased fell down. This was witnessed by P.W.1 and others.
b)The wife of the deceased was informed and she rushed to the place. All of them took the deceased to his house and the deceased died at 9.00 p.m. P.W.1 went to the police station next morning and gave Ex.P.1, the complaint to P.W.10, the Inspector of Police, who registered the case in Crime No.415 of 2004 under Section 302 IPC. Ex.P.9, the F.I.R. was despatched to the Court.
c)P.W.10 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Exs.P.2 and P.3, the observation mahazars and Exs.P.10 and P.11, the rough sketches. The place of occurrence and the dead body were photographed through P.W.7, the photographer. Ex.P.6 is the photos and negatives. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.12, the inquest report. Then, the dead body was sent to the hospital for the purpose of autopsy.
d)P.W.9, the Doctor attached to the Vellore Government Medical College Hospital, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of head injury about 15 to 20 hours prior to post-mortem.
e)Pending investigation, the accused was arrested on 18.10.2004 and he 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.4. Pursuant to the same, the accused produced M.O.1, wooden log, which was recovered under a cover of mahazar. The accused was sent for judicial remand. The Investigator examined the witnesses and recorded their statements. On completion of the investigation, he 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 levelled against the accused, the prosecution examined 10 witnesses and also relied on 13 exhibits and 5 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He flatly denied them as false. No defence witness was examined. The trial court, after hearing the arguments advanced, took the view that the prosecution has proved the case beyond reasonable doubt, found him guilty as per the charge of murder and awarded life imprisonment along with fine and default sentence, which is the subject matter of challenge before this court.
4.Advancing arguments on behalf of the appellant, the learned counsel has made the following submissions:
a)According to the prosecution, the occurrence has taken place on 16.10.2004 at about 6.00 p.m. in a public bazaar and there were number of witnesses since it is a busy commercial area, but the report was given to the respondent police station at about 10.00 a.m. on 17.10.2004 and hence it was very fatal to the prosecution case. According to the prosecution, Samundi died at 9.00 p.m. on 16.10.2004. Admittedly, the respondent police station is situated 9 Kms. away from the scene of occurrence. Hence within half an hour, the report could have been given, but there was a delay till next day.
b)The added circumstance which would cast a doubt on the prosecution case was that P.W.1 and others have categorically admitted that they made preparation for funeral of the deceased Samundi. Thus, it would be quite clear that even before giving the report, they made preparation for his funeral, which would clearly indicate that they did not know about the occurrence. Now, fixing the accused/appellant as the assailant was nothing but only a suspicion in their mind and nothing more. Hence the evidence of prosecution witnesses, who were examined as occurrence witnesses, could not be believed.
c)Further, even according to the witness, the police came to the place at 9.30 a.m. on 17.10.2004, but the prosecution would claim that the case was registered by the Investigator at about 10.00 a.m. on 17.10.2004 at the police station. Thus, the police has arrived at the place at 9.30 a.m., namely even half an hour earlier to the registration of case. Hence the first information has been suppressed and what was placed before the court was not the first information. Under these circumstances, the evidence that was placed was thoroughly shaky and hence the lower court should have rejected the prosecution case.
d)Even assuming that the prosecution has proved the factual position that it was the accused who attacked the deceased on his head with the wooden log and caused his death, the act of the accused would not attract the penal provision of murder, but it was one causing simple hurt, which would attract the penal provision of either 323 IPC or 324 IPC. The occurrence has taken place in a public place and when the deceased was in a drunken mood and was quarrelling in a public place and was causing problem in front of the shop of the accused, naturally the accused intervened and warned the deceased. Despite the same, the deceased was using filthy language and under these circumstances, being provoked by the same, the accused has acted so. Hence the act of the accused was neither intentional nor deliberate, but he attacked the deceased with stick on his head, thereby causing only simple hurt and hence it has got to be considered by this court.
5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
6.It is not in controversy that one Samundi, following an incident that took place at about 6.00 p.m. on 16.10.2004 at the place of occurrence as put forth by the prosecution, died at 9.00 p.m. on the same day. Following the inquest made by P.W.10, the Investigator, the dead body was subjected to post-mortem by P.W.9, the Doctor, who has issued Ex.P.8, the post-mortem, wherein he has opined that the deceased would appear to have died of head injury. Thus, the fact that the deceased died out of the injuries sustained by him was never made as a matter of controversy by the appellant. Hence it has got to be recorded that the deceased died out of homicidal violence.
7.In order to substantiate the charges, the prosecution relied on the evidence of P.Ws.1 and 2. According to the witnesses, on 16.10.2004, the deceased Samundi came to bazaar and he was actually in a drunken mood and was quarrelling for cooli and was also uttering filthy language. At that time, it was not only one Kanna Udaiyar, but also the accused warned him, but he did not stop the same and there was wordy exchange between the accused and the deceased. In that process, the accused took the stick and attacked the deceased on his head. It is pertinent to point out that P.W.1 is the stranger to both the accused and deceased also. No circumstance or reason is brought to the notice of the court to doubt the testimony of P.W.1. Apart from that, the ocular testimony projected by the prosecution through P.Ws.1 and 2 stood fully corroborated by the evidence of P.W.9, the post-mortem Doctor and Ex.P.8, the post-mortem certificate.
8.Yet another circumstance noticed by the court is the production of M.O.1, stick by the accused following his confessional statement recorded by the Investigator in the presence of the witnesses. The evidence in this regard is quite clear. Thus, the recovery of weapon of crime pursuant to the confessional statement would go to show the nexus of the accused with the crime. All put together would clearly indicate that it was the accused who actually attacked the deceased Samundi and as a result, the death has ensued.
9.The contention put forth by the learned counsel for the appellant that there was a delay in the F.I.R.; that the occurrence has taken place at about 6.00 p.m. on 16.10.2004, but the report was given to the respondent police station only on the next day at about 10.00 a.m. and hence there was a huge delay, which would cast a doubt on the prosecution case, cannot be countenanced. It is to be pointed out that the deceased was actually a cooli and immediately after the occurrence, his wife Sumathi was called and it was she along with others took him to the house and the deceased died at 9.00 p.m. and further, the police station is situated 9 kms. away. From the very nature of the things, it would be quite clear that the deceased and his family were poverty-stricken and hence only on the next day, she was to go to the police station to give the complaint. Thus, the court is of the considered opinion that though the delay is noticed, it was only in the natural course of events and it would not in any way affect the truth of the prosecution case.
10.The second contention put forth by the learned counsel for the appellant that the police has come to the place at about 9.30 a.m., but the case was registered at 10.00 a.m. on 17.10.2004 and under these circumstances, there was an another first information given to the police, which has been suppressed, cannot be countenanced. From a scrutiny of the evidence, it would be quite clear that immediately, after the registration of the case by P.W.10, the Inspector of Police, it was he who took up the investigation, proceeded to the spot and prepared observation mahazars and hence there is no doubt in the mind of the court.
11.The third contention is that there was an arrangement for funeral and under these circumstances, they did not know the person, who has actually committed the offence. This contention has got to be brushed aside for the simple reason that the deceased and his family were poverty-stricken and the deceased was actually a cooli. Under these circumstances, it cannot be a reason as pointed out earlier to reject the prosecution case. P.W.1 was the independent witness. The scrutiny of his evidence would clearly indicate that his evidence has got to be accepted, since it has inspired the confidence of the court. Thus, the prosecution has sufficient evidence to prove the fact that it was the accused who attacked the deceased with stick on his head and as a direct consequence, he died and hence it has got to be recorded so.
12.So far as the second line of argument advanced is concerned, this court is able to see sufficient force. At the time of occurrence at about 6.00 p.m. on 16.10.2004, the deceased was in a drunken mood and was quarrelling in a public place. From the evidence of P.W.1, it would be quite clear that it was one Kanna Udaiyar who warned him, but the deceased did not stop the same. The deceased was uttering filthy language and was causing problem in front of the shop of the accused. It is quite natural that the accused also warned him. At this juncture, the deceased uttered that “you are carrying on your business in poramboke land and how can you question me”. On hearing this, the accused got provoked and immediately, he took the stick and attacked the deceased. At this juncture, it is pertinent to point out that when the occurrence has taken place, the accused was not having any stick in hand and he remained unarmed and being provoked, he took the stick lying aside and attacked the deceased. Under these circumstances, the act of the accused was neither intentional nor premeditated, but it was only due to sudden quarrel and provocation, the accused took the stick and attacked the deceased and hence the death has ensued. Therefore, the act of the accused would not attract the penal provision of murder, but it would be one culpable homicide not amounting to murder. The act of the accused would attract the penal provision of Section 304(II) IPC and awarding punishment of 5 years R.I. would meet the ends of justice.
13.Accordingly, the conviction and sentence imposed on the appellant under Section 302 IPC are modified and instead the appellant is convicted under Section 304(II) IPC and sentenced to undergo 5 years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount and the default sentence imposed by the trial court will hold good. It is reported that the appellant is on bail and hence the concerned Sessions Judge shall stake steps to secure his presence and commit him to prison to undergo the remaining period of sentence.
14.With the above modification in conviction and sentence, this criminal appeal is dismissed.
1.The Additional District
and Sessions Judge,
Fast Track Court,
2.The Inspector of Police,
Pallikonda Police Station,
3.The Additional Public Prosecutor,