IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 28.10.2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRL.A.No.145/2009 Sankar .. Appellant/sole accused Vs State by the Inspector of Police D6, Pothattur Pettal Police Station, Tiruvallur District. .. Respondent [Cr.No.64/2006] Appeal filed u/s.374[2] Cr.P.C., to set aside the conviction and sentence imposed on the appellant in SC.No.38/2008 dated 29.01.2009 by the learned Principal Sessions Judge, Tiruvallur. For Appellant : Mr. V.Murugesan For Respondent : Mr.Babu Muthu Meeran, Addl. Public Prosecutor JUDGMENT
[Judgment of the court was delivered by M.CHOCKALINGAM, J.]
Challenge is made to the Judgment of the learned Principal Sessions Judge, Tiruvallur, made in SC.No.38/2008 whereby the accused stood charged, tried and found guilty for the offence u/s.302 IPC and was awarded with life imprisonment and to pay a fine of Rs.1,000/- in default to undergo one year rigorous imprisonment for the offence u/s.302 IPC.
2.Short facts necessary for the disposal of the appeal can be stated as follows:-
[a]P.W.1 to 6 are the residents of Keezhchalam Periyacolony. The accused and his mother-in-law were residing in the same colony. P.W.1 is the wife of P.W.2 and the deceased and P.W.2 are brothers. The accused used to quarrel with his wife frequently and the elders of the family used to pacify them. On 23.07.2006 at about 15.00 hours, the accused was quarreling with his wife and hence, she was about to go to her parental house. At that time, the deceased. holding a knife. chased her and P.W.2 intervened the chasing and snatched the knife from the accused. At that time, on seeing this, the deceased, brother of P.W.2 intervened and questioned the conduct of the accused. Immediately, the accused got into the house and broke the mirror fixed to a bureau and took the glass piece and attacked the deceased on different parts of the body and when the deceased raised a distressing cry, the accused fled away from the scene of occurrence. P.Ws.2 and 5 took the deceased to the Government Hospital, Tirutani wherein P.W.16, the doctor attached to the said hospital, who was on duty at the relevant point of time, treated the deceased and gave Ex.P.9-Accident Register. But despite treatment, the deceased died. Thereafter, P.W.1 went to the respondent police at about 20.30 hours and gave a complaint under Ex.P.1 to P.W.17, the Inspector of Police who was on duty at the relevant point of time. On the strength of Ex.P.1, a case came to be registered in Cr.No.64/2006 for the offence u/s.302 IPC and the Express FIR-Ex.P.10 was despatched to the court.
[b]P.W.17, took up the investigation, went to the scene of occurrence and prepared Ex.P.2-Observation Mahazar and a rough sketch-Ex.P.11 in the presence of witnesses and he also examined the witnesses and recorded their statements. He also recovered M.O.4-glass piece, M.O.1-blood stained earth, M.O.2-sample earth, M.O.3-blood stained shirt under the cover of Mahazar-Ex.P.3 from the place of occurrence in the presence of witnesses. He also arranged for taking the photographs of the scene of occurrence and the photographs and negatives are marked as M.O.7 series and M.O.8 series. Thereafter, the Investigating officer went to the hospital on 24.07.2006 and held inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.12-Inquest Report. He sent the dead body for postmortem along with a requisition to P.W.13-the doctor attached to the Government Hospital, Tirutani. P.W.13 conducted the postmortem and found the following injuries:-
“EXTERNAL INJURIES :-
1.A lacerated wound [7cmx5cmx3cm] from root of the nose to the right upper lip.
2.A lacerated injury in the right anterior aspect of the arm [13cmx6cmx5cm] exposing muscles, tenolons and vessels with haemotoma of about 200 ml in the injured site.
3.Upper right side first premolar-not present ribs intact.””
Ex.P.7 is the Post Mortem Certificate wherein the doctor had opined that the deceased would appear to have died of shock and hemorrhage due to multiple injuries sustained by him.
[c]Pending investigation, the accused was arrested on 27.07.2006 at about 12.15 p.m. and the accused came forward voluntarily to give his confession statement, the admissible part of which is recorded under Ex.P.4 pursuant to which M.Os.5 and 6, viz., glass piece and lungi, were recovered under the cover of Mahazar Ex.P.6 in the presence of witnesses. All the material objects recovered from the scene of occurrence, accused and from the dead body of the deceased were all subjected to chemical analysis which resulted in 3 reports, viz., Exs.P.7,9 and 15, viz., Toxology report, Biology report and Serologist report respectively.
[d]On completion of investigation and filing of the final report, the case was committed to sessions; necessary charges were framed and in order to substantiate the charges, the prosecution examined 18 witnesses [P.Ws.1 to 18], marked 15 exhibits [Exs.P.1 to 15] and produced 11 material objects [M.Os.1 to 11].
3.When the accused was questioned u/s.313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses, he denied them as false and no defence witness was examined on the side of the accused. Hearing the arguments advanced on either side and also considering the materials available on record, the trial court took a view that the prosecution has proved its case beyond reasonable doubt against the accused and thus, rendered the judgment of conviction. As against the said conviction and sentence, the accused has preferred the above appeal.
4.Advancing the arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the occurrence has taken place on 23.07.2006 at about 15.00 hours and P.Ws.1 to 6 were marched as eyewitnesses. P.W.1 is the wife of P.W.2 and the deceased is the brother of P.W.2 and they are closely related to each other and thus, if test of careful scrutiny is applied, their evidence should have been rejected by the trial court. It is further contended that the medical opinion canvassed by the prosecution did not support the ocular testimony. According to P.W.1, the accused attacked with glass piece on the chest and on the left shoulder, but no such injury was found either in the Accident Register-Ex.P.9 or in the Post Mortem Certificate-Ex.P.8. The evidence of all the eyewitnesses were actually found to be discrepant from that of those documents and thus, it would be clear that none of the eyewitness could have seen the occurrence at all. Added further, the learned counsel contended that in the instant case, the investigating officer would claim that the accused was arrested on 27.07.2006 and pursuant to his confession statement, M.O.5-glass piece was recovered under the cover of mahazar. But on the contrary, P.Ws.1,2 and 5 have categorically spoken to the effect that the glass piece was recovered from the place of occurrence on 23.07.2006 and that part of the evidence of the investigating officer in respect of recovery pursuant to the confession, cannot but be false. Learned counsel would further contend that the prosecution has miserably failed to prove its case and therefore, the trial court should have rejected the case of the prosecution in its entirety, but took an erroneous view.
6.Added in the second line of argument, the learned counsel for the appellant contended that even assuming that the prosecution said to have proved the factual position that it was the accused who attacked the deceased, the said offence would not attract the penal provision of 302 IPC. Admittedly, there was a quarrel between the spouse just prior to the occurrence and it was P.W.2 who intervened and snatched the knife from the accused and at that time, when such a situation was prevailing, the deceased intervened and questioned the conduct of the accused. At that time, there was a quarrel and apart from that, when unnecessarily the deceased intervened, the accused got provoked and then, took the glass piece and attacked him. Under such circumstances, it would be quite clear that he had no intention to cause the death of the deceased and hence, the act of the accused would not attract the penal provision of 302 IPC and this legal position has got to be considered by this court, if the court takes the view that it was the accused who attacked the deceased with glass piece and caused his death.
7.Heard the learned Additional Public Prosecutor on the above contentions and the court paid its anxious consideration on the submissions made on either side.
8.It is not in controversy that one Mani, the paternal uncle of P.W.1, following an incident that had taken place before his house at about 15.00 hours on 23.07.2006, was attacked and was taken to the Government Hospital, Tirutani and he was initially treated by P.W.16, the doctor and he succumbed to the injuries at about 4.30 p.m. on the same day and a case came to be registered on complaint preferred by P.W.1 under Ex.P.1 and P.W.17 the Inspector of Police directly registered the case for the offence u/s.302 IPC. At the time of investigation by the investigating officer, an Inquest report was prepared in the presence of witnesses and panchayatdars and the dead body was subjected to postmortem and the same was conducted by P.W.16 who has given her medical opinion as witness before the court and also through the contents of the Post Mortem Certificate, Ex.P.8 that the deceased would appear to have died of shock and hemorrhage due to multiple injuries sustained by him and the fact that the deceased died out of homicidal violence was not disputed by the appellant before the trial court and the trial court did not feel any impediment in recording so and it has got to be affirmed.
9.In order to substantiate that it was the accused who caused the death of the deceased, the prosecution marched P.Ws.1 to 6 out of whom P.W.3 turned hostile. It is true that all the witnesses are inter-related to each other. But, at the same time, it remains to be stated that all these witnesses are equally related to the accused also and hence, there is no need for them to give any false evidence against the accused. Apart from this, no circumstance is brought before the court to accept the contention that P.Ws.1,2,4,5 & 6 have come forward with a false evidence and that their evidence is contrary to the interest of the accused. In the instant case, P.Ws.1,2,4,5 and 6 have spoken in one voice that at the time of occurrence, there was a quarrel between the accused and his wife and the accused was holding a knife in his hand and he was chasing his wife and it was P.W.2 who intervened and snatched the knife from him. At this juncture, the deceased intervened and questioned the conduct of the accused, pursuant to which, being provoked by the same, the accused went inside the house, broke the mirror fixed in the bureau and took the glass piece and attacked the deceased on the chest and on the left side of the shoulder and as a direct consequence, the death has ensued. Under such circumstances, this court is unable to see any reason to doubt the evidence of P.Ws.1,2,4,5 and 6. P.W.16 the doctor who conducted postmortem, has deposed that the death of the deceased has ensued due to shock and hemorrhage due to multiple injuries and thus, it is true that there are discrepancies in the evidence between the ocular testimony and the medical opinion canvassed through the doctor. But the ocular testimony, in the considered opinion of the court, has got to be accepted since it is cogent and trust worthy.
10.It is also true, as rightly pointed out by the learned counsel for the appellant, that there are discrepancies in respect of the recovery of the glass piece to the effect that P.Ws.1,2,4,5 and 6 have spoken to the effect that the glass pieces were actually recovered from the place of occurrence on 23.07.2006, but the investigating officer has deposed that he had recovered the glass pieces on 27.07.2006 pursuant to the confession of the accused. In the considered opinion of the court, the same cannot be given any evidentiary value as this court is able to see sufficient evidence through the ocular testimony of the eyewitnesses P.Ws.1,2,4,5 and 6 and also the medical opinion canvassed. Under such circumstance, suffice evidence is noticed by this court to come to the conclusion that it was the accused who caused the death of the deceased by attacking him with glass piece and that the deceased died due to multiple injuries sustained and hence, the contention put forward by the learned counsel for the appellant in that regard, has got to be rejected.
11.Insofar as the second line of contention of the learned counsel for the appellant that the act of the accused would not attract the penal provision 302 IPC, this court is able to see some force in the said contention. In the instant case, there was a wordy altercation between the spouse, viz., the accused and his wife and it was P.W.2 who intervened at first and he snatched the knife from the hands of the accused and at that time, the deceased intervened and questioned the conduct of the accused when the accused was in a heated passion and when the quarrel was going on, it was the deceased who intervened and whose intervention was taken by the accused as unnecessary and unwarranted. Under such circumstances, due to sudden provocation, he has taken the glass piece and attacked the deceased Mani. But, there is nothing to infer that he had got any intention to cause the death of the deceased. But, he had the intention of causing bodily injury which is sufficient in the ordinary course of nature to cause death. Hence, this court is of the considered view that the act of the accused cannot be termed as murder but as culpable homicide amounting to murder and hence, he has got to be convicted u/s.304 Part I IPC and has to be sentenced to undergo seven [7] years rigourous imprisonment.
12.Accordingly, the criminal appeal is disposed of and the judgment of conviction and sentence imposed on the appellant in SC.No.38/2008 dated 29.01.2009 by the learned Principal Sessions Judge, Thiruvallur is modified and the appellant/accused is convicted for the offence u/s.304 [Part I] IPC and sentenced to undergo seven years rigorous imprisonment. The sentence already undergone shall be given set off.
[M.C.,J.] [V.P.K.J.] 28.10.2009 Index : Yes Internet : Yes ap To 1.The Principal Sessions Judge Tiruvallur. 2.The Inspector of Police D6, Pothattur Pettal Police Station, Tiruvallur District. 3.The Public Prosecutor High Court, Chennai. M.CHOCKALINGAM, J. AND V.PERIYA KARUPPIAH,J. Ap Judgment in Crl.A.No.145/2009 28.10.2009