BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 4/8/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY CRL.A.(MD) No.162 of 2010 Saravanan .. Appellant vs The State Rep. by the Inspector of Police Bodi Town Police Station Theni District in Cr.No.179 of 2007 .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge cum Fast Track Court, Periyakulam, made in S.C.No.86 of 2007 dated 25.6.2008. !For Appellant ... Mr.A.Haja Mohideen ^For Respondent ... Mr.N.Senthur Pandian Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM, J.)
This appeal challenges a judgment of the Additional Sessions Division,
Fast Track Court, Periyakulam, made in S.C.No.86 of 2007 whereby the sole
accused/appellant stood charged under Sec.302 of IPC, tried, found guilty as per
the charge of murder and awarded life imprisonment along with a fine of
Rs.5000/- and default sentence.
2.The short facts necessary for the disposal of this appeal can be stated
as follows:
(a) P.W.1 is the wife of the deceased Balamurugan. One Muneeswari is the
brother’s wife of the deceased. The accused/appellant is the brother of the
said Muneeswari. The family of the deceased owned a house at Subbukothanar
Street in which Muneeswari was residing. P.W.1 and her husband were residing at
Buddharpalli Street. Two years prior to the occurrence, there was a wordy
altercation between the deceased and Muneeswari in their ancestral house. On
seeing this, the accused/appellant objected to that. The deceased, the husband
of P.W.1, questioned the conduct of the accused. Immediately, the accused took
an aruval and attacked him. The matter was reported to P.W.5, who was the
Secretary of the Community Sangam. The community people in their meeting
informed the accused that he should not enter the street and pacified the
situation. Despite the decision, the accused was often coming to the ancestral
house. The same was questioned by the deceased. P.W.3, the father of P.W.1,
brought his daughter to the house of P.W.1. Since they did not have the
sufficient accommodation, they went to the ancestral house. At that time, there
was a wordy altercation between the deceased and the said Muneeswari, and one
was telling the other that they should vacate the house.
(b) On 19.3.2007 at about 10’O Clock, the deceased informed Muneeswari
that they would occupy the ancestral house and would not vacate. Aggrieved over
the same, Muneeswari went to the police station and gave a report. On coming to
know about the same, at about 10.00 P.M., the deceased questioned Muneeswari why
she should go to the police station to give a complaint for nothing. At that
time, the deceased and Muneeswari were quarrelling. The accused who came there,
asked his sister Muneeswari about the quarrel. Then uttering the words “he
should not be allowed to do like this”, the accused went outside with anguish.
The deceased shouted at Muneeswari and came out of the house and was just
proceeding in the street. P.Ws.1 and 2 also came out. At that time, the accused
who was standing with an aruval, repeatedly attacked him on his neck. The same
was witnessed not only by P.Ws.1 and 2, but also by P.Ws.3 and 4. When there
was a distressing cry, he left the place of occurrence. The husband of P.W.1
died at the spot.
(c) P.W.1 proceeded to the respondent police station and gave a report,
Ex.P1, at 23.45 hours to P.W.15, the Sub Inspector of Police. On the strength
of Ex.P1, the report, a case came to be registered in Crime No.179 of 2007 under
Sec.302 of IPC. The printed FIR, Ex.P15, was despatched to the Court, and it
has reached the Judicial Magistrate at about 1.30 A.M. on 20.3.2007.
(d) P.W.16, the Inspector of Police of the 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 also a rough sketch, Ex.P16. He
also recovered the material objects from the place of occurrence. Then he
conducted inquest on the dead body of Balamurugan in the presence of witnesses
and panchayatdars and prepared an inquest report, Ex.P17. Thereafter, the dead
body was sent to the Government Hospital for the purpose of autopsy.
(e) P.W.9, the Assistant Surgeon, attached to the Government Hospital,
Bodinayakanur, on receipt of the requisition, has conducted autopsy on the dead
body of Balamurugan and has issued a postmortem certificate, Ex.P5, with her
opinion that the deceased would appear to have died of shock and haemorrhage due
to external injury No.1 and 2 and its corresponding internal injuries 12 to 16
hours prior to autopsy.
(f) Pending investigation, the accused was arrested on 20.3.2007, when he
came forward to give a confessional statement voluntarily. The same was recorded
in the presence of witnesses. Ex.P18 is the admissible part of the confessional
statement. Consequent upon the same, he produced M.O.1, aruval, M.O.6, nylon
bag, and M.O.7, jute rope, which were recovered under a cover of mahazar. He
was sent for judicial remand. All the material objects were subjected to
chemical analysis which brought forth two reports namely Ex.P11, the chemical
analyst’s report, and Ex.P12, the serologist’s report. 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 16
witnesses and also relied on 19 exhibits and 13 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. The trial Court heard the arguments advanced on either side and
took the view that the prosecution has proved the case beyond reasonable doubt
and hence found him guilty and awarded the above punishment. Hence this appeal
at the instance of the appellant.
4.Advancing arguments on behalf of the appellant the learned Counsel in
his sincere attempt of assailing the judgment of the trial Court, would submit
that the occurrence, according to the prosecution, has taken place at about
11.30 P.M. on 19.3.2007, and P.Ws.1 to 4 were shown as occurrence witnesses;
that the names of P.Ws.3 and 4 are not found in Ex.P1, the report; that under
the circumstances, they could not have seen the occurrence at all; that all the
witnesses examined are closely related to the deceased, and thus they are all
interested witnesses; that insofar as the earlier incident of quarrel between
Muneeswari, the sister of the accused, and the deceased in the past, no one has
deposed, and this motive attributed to the accused was not at all established;
that according to the prosecution, so many witnesses were actually present at
the place of occurrence, but no one has been examined; that P.Ws.1 and 2 could
not have been in the place of occurrence at all; that according to P.W.2, the
deceased was in the police station till 9.30 P.M., and he returned home, and
they all had food and went to the place of the ancestral house only at about
11.30 P.M.; that P.W.9, the Doctor, who conducted postmortem, has categorically
stated that 100 gms of partly digested cooked food material was found in the
stomach, and it would take 4 to 6 hours for semi-digestion; and that if to be
so, the occurrence could not have taken place as put forth by P.Ws.1 and 2.
5.The learned Counsel would further add that according to P.Ws.1 and 2,
they lifted the body, and their clothes were completely drenched with blood;
but, those material objects were actually not recovered from them; that
according to the prosecution, the occurrence has taken place at 11.30 P.M., and
subsequently the case was registered at 11.45 P.M., and the FIR has reached the
Judicial Magistrate at 1.30 A.M. the next day; but P.W.11, the Photographer, has
categorically stated that he went to the place of occurrence and took the
photographs at about 12.00 A.M. night, and therefore, it would be quite
impossible; that the time what was given was actually false; that P.W.6 was
shown as a witness to Ex.P1, the complaint; that he has categorically admitted
that he signed Ex.P1 at the place of occurrence; that contrarily, it is stated
by P.W.15, the Sub Inspector of Police, that Ex.P1 complaint was given at the
police station, and then the case was registered; that it is highly doubtful
whether Ex.P1 could have come into existence as put forth by the prosecution;
that P.W.1 has categorically stated in evidence that the occurrence has taken
place near Sandhanamariamman Temple; but, the said Sandhanamariamman Temple is
not found in the sketch; that under the circumstances, the place of occurrence
as shown by the prosecution is also doubtful; and that it would also indicate
that P.Ws.1 and 2 could not have seen the occurrence at all.
6.Added further the learned Counsel that Ex.P5, the postmortem
certificate, would indicate that six injuries are found; that out of these six
injuries, four are found to be cut injuries, and the other two are not found in
the neck; that one was noted on the right fronto parietal region of scalp and
the other was noted on dorsum of left lower hand near wrist joint, but P.W.1 has
not stated so in Ex.P1, the report, or not stated even at the time of evidence;
that those injuries which are found on the body of the deceased, were not
properly accounted, and thus the prosecution has failed to prove the motive.
7.It is further submitted by the learned Counsel that the Investigator
would claim that he was arrested on 20.3.2007, when he came forward to give a
confessional statement pursuant to which M.O.1, aruval, M.O.6, nylon bag, and
M.O.7, jute rope, were recovered from him; but contrarily, P.W.2 has stated that
the accused was found in the police station on the very night itself; that P.W.3
has categorically stated that the accused was caught red handed and handed over
to police; that under the circumstances, the evidence in respect of arrest and
confession and the evidence of P.W.16, the Investigating Officer, are found to
be discrepant; that in such circumstances, the arrest, confession and recovery
cannot but be false, and hence he is entitled for acquittal giving the benefit
of doubt; but, the trial Judge has taken an erroneous view.
8.The Court heard the learned Additional Public Prosecutor on all the
above contentions and paid its anxious consideration on the submissions made.
9.It is not in controversy that one Balamurugan, the husband of P.W.1, was
done to death in an incident that had taken place at about 11.30 P.M. on
19.3.2007. Following the registration of the case, the investigation was taken
up by P.W.16, the Inspector of Police, and after the inquest was over, the dead
body was sent to the Government Hospital for the purpose of postmortem. P.W.9,
the Doctor, who conducted autopsy, has given a report that he died out of shock
and haemorrhage due to the injuries sustained by him. The fact that he died out
of homicidal violence was not disputed by the appellant, and hence it has got to
be recorded so.
10.In order to substantiate that it was the accused who attacked him with
an aruval and caused his death, the prosecution examined P.Ws.1 to 4. It is
true that P.W.1 is the wife and P.W.2 is the daughter of the deceased. It is
settled law that merely because of the relationship of the parties with the
deceased, their evidence cannot be discarded, but before acceptance, careful
scrutiny test must be applied. In the case on hand, this Court is satisfied
that their evidence is natural and cogent, and hence it has got to be accepted.
All these witnesses have spoken in one voice that they owned an ancestral house
in which Muneeswari, the sister of the accused, was staying; that they were
actually staying in another house at Buddharpalli Street; that on the previous
day, there was a quarrel and also on so many occasions, there were quarrels
between the deceased and Muneeswari, the brother’s wife of the deceased; that on
the earlier occasion also, the accused attacked the deceased; that the same was
pacified by the intervention of the community people; that also on the date of
occurrence on the morning hours, there was a wordy altercation between the
deceased and Muneeswari; that Muneeswari went to the Police Station to give a
complaint; that on that night at about 10.00 P.M., the deceased questioned
Muneeswari why she should go to the police station to give a complaint; that at
that time, the accused came there and also witnessed the said quarrel, and
following the same, when the deceased came out of the house, P.Ws.1 and 2 were
also just coming out along with him; and that at that time, the accused who was
standing with an aruval, attacked him indiscriminately on his neck and caused
his death. The evidence of P.Ws.1 and 2 stood fully corroborated by the medical
evidence canvassed through P.W.9.
11.The contention put forth by the learned Counsel for the appellant that
six injuries as found in the postmortem certificate, are not accounted by P.Ws.1
and 2 cannot be accepted. P.W.1 is the wife, and P.W.2 is the daughter of the
deceased. They have categorically stated that he gave number of cuts on the
neck. According to the Counsel, four injuries are noticed on the neck and the
other two injuries are not accounted for. But, in a given situation like this,
when P.Ws.1 and 2 are under the grip of excitement, one could not expect them to
notice the number or the seat of the injuries. It is true that in the instant
case, the occurrence has taken place at about 11.30 P.M., and the complaint was
given at about 11.45 P.M. Immediately the case has been registered, and the FIR
has reached the Judicial Magistrate at about 1.30 A.M. It remains to be stated
that the motive and the previous incident which led the accused to do so, and
the fact that P.Ws.1 and 2 are shown as eyewitnesses, and the case has been
registered within a short span of 15 minutes, and the FIR has also reached the
Magistrate within an hour and 45 minutes and the necessary proof therefor, would
clearly indicate that P.Ws.1 and 2 could have been the eyewitnesses to the
occurrence. But, at the same time, as rightly pointed out by the learned
Counsel, P.Ws.3 and 4 could not have been present at the place of occurrence.
12.The other contention put forth that P.W.11, the Photographer, came to
the place of occurrence at about 12.00 A.M. itself, and he took photographs and
therefore, the evidence of the eyewitnesses should not be believed cannot be
accepted. It should not be forgotten that P.W.11 was called during night hours,
and he went to the place, and there is no note prepared by P.W.11 from which he
could speak. It could not have been except by a memory, for which no importance
could be given.
13.The learned Counsel for the appellant brought to the notice of the
Court certain discrepancies. As far as the FIR is concerned, P.W.1 who is the
author of the report, Ex.P1, and also P.W.15, the Sub Inspector of Police, who
registered the case, have been examined. Thus, it leaves no doubt in the mind of
the Court as to the registration of the case. Apart from that, it has also
reached the Judicial Magistrate at about 1.30 A.M. as could be seen from the
original FIR.
14.This Court is able to see force in the contention put forth by the
learned Counsel for the appellant in respect of the arrest, confession and
recovery of M.O.1, aruval, and other material objects from the accused in view
of the evidence adduced by P.W.2 that the accused was taken to the police
station on the very night itself immediately after the occurrence. It would be
quite clear that the claim of the Investigator that he was arrested later, and
also he gave a confessional statement, and the consequent recovery cannot but be
false, and they have got to be rejected. Even barring that evidence, the
prosecution had suffice evidence of the occurrence witnesses namely P.Ws.1 and
2, and also it is corroborated by the medical evidence. Thus it can be well
stated that by sufficient evidence, the prosecution has proved that it was the
appellant/accused who attacked the deceased at the time and place of occurrence
and caused his death.
15.As far as the nature of the act of the accused is concerned, this Court
is of the considered opinion that the same would not attract the penal provision
of murder. In the case on hand, as could be seen from the available evidence,
Muneeswari was living alone in the ancestral house, and P.W.1 and the deceased
were living with the family in Buddharpalli Street. On the earlier occasion,
the deceased was quarrelling with Muneeswari, a womenfolk, and on the date of
occurrence also, on the morning hours, he quarrelled with her which impelled her
to go to the police station to lodge a complaint, and despite the fact, he
continued to quarrel with her during night hours at about 10.00 P.M. This was
witnessed by the accused, who is none else than the brother of the said
Muneeswari, and he who could not tolerate the same, has acted so. At that time,
he has also questioned about the conduct of the deceased in quarrelling with a
womenfolk. Under the circumstances, the act of the accused cannot but be one
due to sudden provocation, and it was neither intentional nor premeditated.
Hence the act of the accused would fall under Sec.304 (Part I) of IPC, and
awarding a punishment of seven years Rigorous Imprisonment would meet the ends
of justice.
16.Accordingly, the conviction and sentence imposed by the trial Court, on
the appellant/accused under Sec.302 of IPC are set aside, and instead, he is
convicted under Sec.304 (Part I) of IPC and is directed to suffer seven years
Rigorous Imprisonment. The sentence already undergone by him, shall be given set
off. The fine amount and default sentence imposed by the trial Court, will hold
good.
17.In the result, this criminal appeal is, accordingly, disposed of.
nsv
To
1.The Additional District and
Sessions Judge
Fast Track Court
Periyakulam
2.The Inspector of Police
Bodi Town Police Station
Theni District
in Cr.No.179 of 2007
3.The Section Officer
Criminal Section
4.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai