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Sankara Thevar vs State Rep. By on 9 February, 2005

Madras High Court
Sankara Thevar vs State Rep. By on 9 February, 2005
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 09/02/2005

Coram:
THE HON'BLE MR.JUSTICE P.D.DINAKARAN
AND
THE HON'BLE MR.JUSTICE S.ASHOK KUMAR

CRIMINAL APPEAL No. 769  OF 2002

Sankara Thevar			..Appellant

Vs.

State rep. By
The Inspector of Police,
Kalakkad Police Station
Tirunelveli District		..Respondent


	This Criminal Appeal has been preferred against the  judgment and
conviction passed by the Learned Principal District and Sessions Judge,
Tirunelveli District in S.C.No 362 of 1999, dated 26.3.2002.

!For appellants ...	Mr.N.Mohideen Basha

^For respondent	...	Mr.Radhakrishnan
			Additional Public Prosecutor

:JUDGMENT

S.ASHOK KUMAR,J.,

The appellant was the sole accused in S.C.No.362 of 1999 on the file of
the Principal Sessions Judge, Tirunelveli. He was convicted for offences under
Section 302 IPC, and sentenced to undergo imprisonment for life, and to pay a
fine of Rs.500, in default to undergo rigorous imprisonment for three months,
and also convicted for the offence under Section 324 IPC, and sentenced to
undergo rigorous imprisonment for Six months, both the sentences to run
concurrently.

2. The brief facts of the prosecution case are as follows:
The deceased is one of the son-in-law’s of the accused. P.W.1 is younger
brother of the deceased. P.W.2 is the wife of the deceased. P.W.3 is mother of
P.W.2 and wife of the accused. They were all residents of Pothaisuthi village
near Kalakkad in Tirunelveli District. The accused borrowed a sum of Rs.10,000/=
from one Mani, widow and for payment of interest he allowed the said Mani to
cultivate the land. The deceased and P.W.3 along with some hirelings threatened
the said Mani to pay them Rs.10,000/= for cultivating the land which culminated
in lodging of a complaint Ex.P.1 by the said Mani before the Kalakkad Police
Station. On 8.2.1999, the Inspector of Police called the complainant Mani, the
deceased, P.W.1 and P.W.4 and another Durai, a hireling of the deceased and
compromised the matter, by which the accused should pay Rs.13,700/= to the said
Mani within one month and on such payment the said Mani should hand over
possession of the land to the accused. A Muchalika was also signed by the
accused, his wife P.W.3, the deceased and P.W.1, which is part of Ex.P.1. Two
days later, i.e., on 10.2.1999, when the deceased was standing in front of his
house the accused attempted to beat him with iron pipe, P.W.1 intervened and
sustained injury on his left wrist. The deceased took to his heel, but the
accused chased him and hit him repeatedly with the iron pipe, which caused the
instantaneous death. This occurrence took place at about 4.00 pm., Immediately,
P.W.1 went to Kalakkad Police Station and lodged the complaint at 7.00 pm., The
same was recorded by P.W.7, Grade I Police Constable who registered a case in
Crime NO.54 of 1999 under Section 302 IPC. P.W.12 Inspector of Police took up
the investigation and he went to the place of occurrence at 9.00 pm., and in the
presence of Muruganand one Kannupandi he prepared Ex.P.3 observation mahazar.
Thereafter he also prepared rough sketch Ex.P.18. On the same day between 10.00
pm., and 12.00 pm., he conducted inquest on the body of the deceased in the
presence of Panchayatdars and some witnesses. The inquest report prepared by him
is Ex.P.19. Thereafter he sent Ex.P.8 requisition to P.11, Medical Officer,
Government Hospital, Kalakkad, to conduct autopsy on the body of the deceased at
11.00 a.m., The Doctor found the following injuries:-

“External injuries:-

1) A lacerated wound on he Head extending from above the right eye on
the forehead to the right and top of Head above the right ear. The wound runs
from posterior to anterior. The edge was crushed. Depth is more on the posterior
side. Size 10 cms x 3 cms x 4 cms. Scalp tissue injured. Commuted irregular
fracture of the right parietal bone 4 cms x 2 cms x 2 cms. Bone pieces are
loosely present blood clots present. The underlying brain compressed and
damaged.

2) A lacerated wound on the top and front side of head running posterior
to anterior. Depth more on the posterior side. Tissue irregular cut and crushed
5 cms x 3 cms x 3 cms. Frontal bone linear fracture 3 cms x 1 cm. Blood clots
present. The underlying brain compressed and damaged.

3) A lacerated wound on the right cheek near the eye 4 cms x 2 cms x 2 cms
underlying bone maxilla fractured. Blood clots present.

4) A lacerated wound on the middle of forehead 2 cms x 1 cm x 1 cm blood
clots present.

5) A lacerated wound right cheek 3 cms below the wound No.3 2 cms x 1 cm x
2 cms. Wound enters into the mouth. The right upper 2 premolar and 1st molar
teeth broken All the wounds are antemortem.

Internal Examination:

Abdomen: Viscera in situ. No internal injury. Stomach contains partly
digested food. Liver pale. Kidney pale. Spleen pale, Large intestine foecal
matter. Bladder empty. Thorax: Viscera in situ No internal injury. Heart empty .
Lungs pale. Head: injuries already described Brain pale.”

3. Ex.P.15 is the postmortem certificate. He also gave the opinion that
the deceased appears to have died of Head injury and brain damage.

4. P.W.11, Dr.Jayakumar, also treated P.W.1, who sustained injuries at the
hands of the accused at 10.00 pm., on 10.2.1999. P.W.1 sustained contusion on
the back of left hand 3 x 2 x 2 cm. P.W.12 Inspector of Police, on the same day
examined P.W.1, Chinnadurai, P.W.2 Santhanam, P.W.3, Shanmughathai, P.W.4
Murugan, P.W.8, Paulraj, and witnesses Murugammal, Mani and Kannupandi and
recorded their statements. On 11.2.1999 at 00.30 hrs he seized M.O.2
bloodstained earth, M.O.3, Sample earth from the place of occurrence under a
cover of mahazar Ex.P.4, attested by P.W.6 Lakshmanan and one Thaila Thevar. On
the same day, he examined the attesting witnesses. On 12.2.1999, he examined
P.W.11, Doctor and recorded his statement. On 15.2.199 by 11.30 a.m., in the
presence of P.W.5, Thaila Thevar and P.W.6, Lakshmanan, near Idayankulam Bus
Stop he arrested the accused. The accused volunteered to give a confession
statement, admissible portion of the said statement is Ex.P.6. In pursuance of
the said confession , the accused took P.W.12 and other witnesses to the
backside of the house of one Poothapandi of Keezhadevanallur and produced M.O.1
iron pipe from a bush, which was seized under a cover of mahazar Ex.P.5. The
accused and case properties were remanded to judicial custody. He further
examined P.W.11 Doctor on 3.6.1999 and recorded his statement. After completing
the investigation, on 5.6.1999 he filed the final report before the Judicial
Magistrate, Nanguneri against the accused for alleged offence under Section 302
IPC.

5. In the Sessions Court, Tirunelveli, on behalf of the prosecution, P.Ws.
1 to 23 were examined and Exs.P.1 to 20 and M.Os 1 to 6 were marked. No witness
was examined, nor any document was marked on behalf of the accused. When the
accused was questioned under Section 313 Cr.P.C., with regard to the
incriminating circumstances appearing in the evidence of the prosecution
witnesses, the accused denied the same as false.

6. On a consideration of the oral and documentary evidence produced on
behalf of the prosecution, the learned Sessions Judge came to the conclusion
that the charges framed under sections 324 and 302 IPC have been proved and
convicted the accused as mentioned earlier. Hence this appeal.

7. Mr.Mohideen Basha, learned counsel appearing for the appellant would
contend that there is a delay in the FIR reaching the court since the learned
Judicial Magistrate has not noted the time of receipt of the FIR and the FIR
contained all the details of the nature of injuries, it would show that the FIR
should have been prepared only after seeing the body and noting the injuries.
The further contention of the learned counsel is that P.W.1 is a chance witness
and his evidence is highly suspicious and should not be acted upon and also that
Ex.P.1 and P.20 have been prepared for the purpose of the case.

8. Per contra, Mr.Radhakrishnan, Additional Public Prosecutor, vehemently
contended that apart from P.W.1, younger brother of the deceased, wife of the
deceased P.W.2 and wife of the accused P.W.3 have also deposed about the
occurrence and their presence at the scene of occurrence cannot be
disputed,because the occurrence took place in front of their houses.

9. As regards the contention of the learned counsel for the appellant that
Ex.P.1 complaint, dated 1.2.1999 given by Mani and Ex.P.20, compromise, dated
8.2.1999 are documents created for the purpose of this case, the said contention
is not sustainable for the simple fact that the deceased Sudalaikannu has also
signed in the compromise which is found in the complaint Ex.P.1 itself.
Therefore the Exs.P.1 and 20 could not have come into existence after the FIR
and therefore there is no reason to doubt Exs.P.1 and 20. The motive for the
occurrence is said to be that the accused has borrowed a sum of Rs.10,000/=
from the said Mani and in lieu of interest, he has permitted her to cultivate
the land which was not tolerable to the deceased and the wife of the accused.
That is why ;the deceased and P.W.3, wife of the accused have threatened the
said Mani to give them Rs.10,000/= which has culminated in lodging of a
complaint by the said Mani before Kalakkad Police Station on 1.2.1999 which is
marked as Ex.P.1. On 8.2.1999 a compromise has been arrived at in which the
accused, P.W.1, the deceased, P.W.3 wife of the accused have agreed to pay
Rs.13,700/= in one month and all of them have signed the compromise.

10. Apart from Exs.P.1 and P.20, P.W.12,Inspector of Police has also sent
for the documents and deposed about the same. The accused got a grievance
against the deceased, because the said Mani was forced to lodge a complaint
only due to the behaviour of the deceased in threatening her and due to such
motive he is said to have caused the death of the deceased by beating him
repeatedly with the iron pipe. The occurrence is spoken to by P.W.1, younger
brother of the deceased, P.W.2, wife of the deceased and P.W.3, wife of the
accused. P.W.2 is not only the wife of the deceased, but also the daughter of
the accused. The presence of P.W.s 2 and 3 at the place of occurrence cannot
be termed as impossible, nor those two witnesses can be called as chance
witnesses. They are natural witnesses residing in their houses and the time of
occurrence is also 4.00 pm., by which time, the ladies will be normally staying
in the houses. Therefore, P.Ws 2 and 3 cannot be termed as chance witnesses or
their presence at the place of occurrence cannot be disputed.

11. Apart from the evidence of P.Ws 2 and 3 there is supporting evidence
of P.W.1, whose evidence is cogent and corroborating the evidence of P.Ws 2 and

3. Further, there is no need for the wife of the accused, P.W.3 to depose
against her husband, if it is a false case foisted against him.

12. Apart from the ocular evidence of witnesses P.Ws 1 to 3, there is
important circumstantial evidence i.e., on 15.2.1999 when the accused was
arrested, he has volunteered to give a confession statement, admissible portion
of which is Ex.P.6 and in furtherance of the said confession he has produced
M.O.1 Iron Rod, which was seized under a cover of mahazar Ex.P.5. When the said
Iron Rod and the case properties were sent for chemical analysation, Ex.P.13,
Serologists Report revealed that M.O.1 Iron Rod and M.O2, bloodstained earth
contained human blood. According to P.11, Dr.Jayakumar, who conducted autopsy,
the injury No.1, a lacerated wound on the head was fatal. Lacerated wounds found
on the head of the deceased and right cheek and middle of forehead could have
been caused by M.O.1 iron pipe and also these injuries could have caused the
instantaneous death. The ocular evidence of P.Ws. 1 to 3 is supported by
medical evidence and also by circumstantial evidence namely recovery of M.O.1
weapon, which was found to contain human blood. We do not find any reason to
doubt with the evidence of P.Ws 1 to 3, who are close relatives of the accused
and we do not find any reason to interfere with the judgment and conviction of
the accused. Hence this appeal deserves to be dismissed and the same is
dismissed accordingly.

gkv

Copy to:

1) The Public Prosecutor
Madurai Bench of Madras High Court.

Madurai.

2. The Principal District and Sessions Judge,
Tirunelveli District

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