BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19/03/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.A.(MD)No.177 of 2001 Shankar ... Appellant Vs. The State rep.by the Inspector of Police, K1, Anna Nagar Police Station, Madurai. (Crime No.535/1997) ... Respondent PRAYER This criminal appeal has been preferred under Section 374 Cr.P.C against the judgment dated 18.12.2000 made in S.C.No.311 of 1998 by the First Additional Sessions Judge cum Chief Judicial Magistrate, Madurai. !For Appellant ... Mr.K.Jeganathan ^For Respondent ... Mr.N.Senthur Pandiyan, A.P.P. :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
Challenge is made to the judgment of the Additional Sessions Division,
Madurai, made in S.C.No.311 of 1998, whereby the sole accused/appellant stood
charged, tried, found guilty under Section 302 IPC and awarded life
imprisonment. Hence, this appeal has been brought forth by the appellant.
2. The short facts necessary for the disposal of the appeal could be
stated as follows:-
a) P.W.2 is the wife of the deceased, Oottapandi and P.W.8 is the sister
of the deceased. Both the accused and the deceased were rearing pigs and
engaged in that business. In that, they had rivalry, and they were on inimical
terms. On the date of occurrence, i.e.,17.08.1997, at about 2.00 p.m., the
deceased left the house telling that he was going to feed the pigs. Till 4.00
p.m. he did not return. P.W.2 was informed that her husband and the accused
were quarreling in front of Kaliyammal Temple. The same was informed to P.W.8
also. Both of them were proceeding to that temple. At that time, they found
the accused chasing the deceased near Aravind Eye Hospital telling ” I will not
leave you”, and so saying, the accused attacked the deceased with a patta knife
on different parts of the body. The said occurrence was witnessed by P.Ws.5 and
9. He fled away from the place of occurrence. The deceased met with an
instantaneous death. P.W.1, who was a watchmen of the said hospital, witnessed
the occurrence. He immediately informed to P.W.6, the doctor, attached to
Aravind Eye Hospital. P.W.6, in turn informed to the control room, where
P.W.13, the wireless operator, was on duty, who in turn passed on the message to
P.W.14, the Head Constable. P.W.14 informed to P.W.19, the Sub-Inspector of
Police, who immediately proceeded to the hospital. On the strength of the
information given by P.W.1, he received the complaint under Ex.P.1, as a result
of which, a case came to be registered under Section 302 IPC. Express FIR was
despatched to the Court as well as to the Higher Officials.
c)On receipt of the copy of the FIR, P.W.20, the Inspector of Police, took
up the investigation, proceeded to the place of occurrence, made an inspection
in the presence of witnesses and prepared Ex.P.5, the Observation mahazar, and
Ex.P.14, the rough sketch. He conducted inquest on the dead body of the deceased
in the presence of witnesses and panchayatdars and prepared an inquest report,
Ex.P.15. He recorded the statement of the witnesses. The dead body was sent to
the hospital for post-mortem.
d) Following the same, P.W.7, the Doctor, attached to Rajaji Government
Hospital, conducted autopsy on the dead body of the deceased and issued Ex.P.3,
the post-mortem certificate, wherein he has opined that the deceased would
appear to have died out of shock and hemorrhage and due to the injuries
sustained and also corresponding injuries, and he would have died between 12.00
to 18.00 hours prior to autopsy.
e) Pending investigation, the investigator came to know that the accused
surrendered before the Judicial Magistrate, Thirupthur, on 19.08.1997. He
applied for the judicial custody, and the same was ordered. At the time of
enquiry, the accused voluntarily gave a confessional statement, which was
recorded in the presence of witnesses, the admissible part of which was marked
as Ex.P.7. Pursuant to the confession, he produced M.O.3, Patta Knife, which was
recovered under a cover of mahazar, Ex.P.8. The accused was sent for judicial
remand.
f)All the material objects recovered from the place of occurrence, and
from the dead body of the deceased and the weapon of crime recovered from the
accused, were sent for chemical analysis, which resulted in two reports, namely,
Ex.P.11, the Chemical analyst’s report, and Ex.P.12, the Serologist’s report. On
completion of the investigation, the Investigating Officer has filed the final
report before the concerned court.
3.The case was committed to the court of Sessions, and necessary charges
were framed. In order to substantiate the charges, the prosecution examined 20
witnesses and relied on 17 exhibits and 6 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 denied them as false. On the side of the accused, no
witness was examined. The lower court after hearing the arguments advanced, took
the view that the prosecution has proved the case beyond reasonable doubt, found
him guilty under Section 302 IPC and awarded punishments as referred to above.
Under these circumstances, this appeal has arisen at the instance of the
appellant.
4.Advancing arguments on behalf of the appellant,
Mr.K.Jeganathan, the learned counsel would submit that in the instant case, the
prosecution has not proved the case in any manner known to law. The occurrence
has taken place on 17.08.1997, at about 4.00 p.m. P.Ws.1 to 5 and 8 and 9 have
been examined as eye witnesses, out of whom, P.Ws. 3 and 4 have turned hostile.
P.Ws 2 and 5 have claimed that when they were nearing the place of occurrence,
they found the accused chasing the deceased and giving him blow with the patta
knife. Learned counsel would submit that P.Ws.2 and 5 could not have been in
the place of occurrence at all, for the simple reason that at the time of
occurrence, they were actually in the house, and after receiving the information
about the incident, they came to the place of occurrence. There is no
possibility that P.Ws.2 and 5 could have been in the place of occurrence at all.
Even from the evidence of P.W.2, it would be quite clear that she came to the
place of occurrence between 3.00 p.m or 3.30 p.m. If to be so, even according
to the prosecution, at 4.30 p.m, she could not have heard about the occurrence
earlier. This would indicate that she could not have been an eyewitness. As far
as the other two witnesses were concerned, Ex.P.1 information given to the Sub-
inspector of Police by P.W.1 would clearly indicate that no one could have been
an eyewitness.
5.Added further, P.W.1 has not mentioned or whispered anything about the
presence of P.Ws.2,5,8 and 9. Thus, it would be quite clear that no one was
present, and he has stated that it was known to the relations of the deceased.
He further stated that the First Information Report has been created and written
in such a way to include any one of them as an eyewitness, as if they have seen
the occurrence. In Ex.P.1, the watchman has not given any identity of the
accused. At the same time, from the evidence of others, it is clear that one
witness by name Sankar was there at the time and place of occurrence. He
accompanied the deceased also. But, the investigator has not proceeded
investigation in that line, and he has fixed the accused/appellant, who was
thoroughly innocent. Even the so called eyewitnesses could not give any proper
evidence, and if their evidence is viewed from the post-mortem certificate, it
would clearly reveal that the witnesses could not have been in the place of
occurrence at all. Thus, all put together would go to show that they could not
have been eyewitnesses.
6.Added further, when the occurrence was witnessed by P.W.2, the wife, and
P.W.8, the sister, it is highly surprising why the information and complaint
should be received from a third party, the watchman, P.W.1. This would indicate
that no one could have seen the occurrence at all. Even in the complaint,
Ex.P.1, nowhere he has stated that he already knew the accused. In a given case
like this, identification parade should have been conducted, but it was not done
so. Hence, it is fatal to the prosecution case, and the prosecution has not
proved the case beyond reasonable doubt. Hence, the accused/appellant is
entitled for acquittal.
7.Added further the learned counsel that, even assuming that it was the
accused who attacked the deceased at the time and place of occurrence and
caused instantaneous death of the deceased, the act of the accused would not
attract the penal provision of murder. Even from the evidence of P.W.2, it is
seen that there was a quarrel going on between the deceased and the accused in
Kaliyamman Kovil, and when the deceased was running near the hospital, the
occurrence has taken place. Apart from this, actually there was enmity
prevailing between the parties, as a result of which, the accused has acted so.
Hence, the act of the accused is neither premeditated nor intentional, and
hence, this legal aspect has to be considered by the Court.
8.The Court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made and also
made a thorough scrutiny of the materials available.
9.It is not in controversy that the deceased Oottapandi was done to death
in an occurrence that took place on 17.08.1997, in front of Aravind Eye
Hospital. Following the inquest made by the investigator, the dead body was
subjected to post-mortem by P.W.7. He categorically opined in his post-mortem
certificate, Ex.P.3, that the deceased would appear to have died of shock and
hemorrhage and the injuries sustained by him. The fact that he died out of
homicidal violence was never disputed by the accused/appellant. Hence, it has
got to be recorded so.
10.In order to substantiate the case of the prosecution that it was the
accused who attacked the deceased, Oottapandi, with the patta knife at the time
and place of occurrence and caused death, the prosecution has examined P.Ws.1 to
5 and 8 & 9. Out of these witnesses, P.Ws.3 and 4 have turned hostile. But
even then, the Court is satisfied that the witnesses who have been examined by
the prosecution, have spoken in one voice as to the entire incident. P.Ws 2 and
8, who were the wife and the sister of the deceased respectively, on hearing
about the quarrel between the accused and the deceased at the place of
Kaliyammal Temple went over there, where they found the accused chasing the
deceased near Aravind Eye Hospital with patta knife, following which they have
witnessed the accused attacking the deceased. It is an undisputed fact that
P.Ws.2 and 8 knew the accused very well earlier. Hence, they could very well
identify him. Apart from this, P.W.1, a watchman, has also seen the entire
occurrence. It is true that P.W.1 did not know the accused, but he has averred
in the report that later, he came to know about the name of the accused.
Further, the very mention of FIR and the statement of P.W.1, independent
witness, a watchman, in Aravind Eye hospital would indicate that the occurrence
was known to the relatives of the deceased. It would be quite clear that P.Ws.2
and 8 have witnessed the occurrence. Apart from this, P.Ws. 8 and 9 have
actually seen the accused running away from the place of occurrence with blood
stained patta knife. Thus, all would go to show that they have seen the
occurrence which is the first part and the accused running away with blood
stained knife from the place of occurrence which is the second part and that
would be pointing to the guilt of the accused.
11.Now, it is brought to the notice of the Court that there was one Sankar
who has been examined and witnessed that he was in the company of the witness
himself having involvement in the occurrence. This argument is now put forth
before the appellate forum without having any factual foundation, and not even
any suggestion was made to any one of the eyewitnesses or to the investigator.
This contention put forth by the learned counsel cannot be accepted at this
stage, and this has got to be rejected. It is pertinent to point out that the
medical opinion canvassed before the trial Court was fully in support of the
prosecution case. Yet another circumstance is the recovery of weapon of crime,
when he was in the police custody, and the witnesses examined in that regard
remained unshaken. Thus, all would go to show that the prosecution has proved
the case beyond reasonable doubt in respect of the fact that it was the accused
who attacked the deceased and caused his death instantaneously.
12. Now, coming to the second line of argument, this Court is able to see
force that P.Ws.2 and 8 only after hearing about the wordy altercation between
the deceased and the accused both have proceeded to the spot. Though P.W.4
turned hostile, he has categorically admitted that there was a wordy altercation
between the accused and the deceased for more than 15 minutes at the spot. It
is pertinent to point out that they have business rivalry in pigs and thus, at
the time and place of occurrence, there was a wordy altercation which has
culminated in the occurrence. As such, now it could be stated that the act of
the accused was neither premeditated nor intentional. But he has acted so and
caused the death of the deceased. At best, it is only a culpable homicide not
amounting to murder. Hence, the act of the accused would not attract the penal
provision of murder, but in the opinion of the Court, it would attract the penal
provision of Section 304(ii) IPC and awarding punishment of ten years Rigorous
Imprisonment would meet the ends of justice. Accordingly, the conviction and
sentence imposed on the appellant under Section 302 IPC are set aside and
instead, he is convicted under Section 304 (ii) IPC and sentenced to undergo ten
years Rigorous Imprisonment. The period of sentence already undergone by the
accused/appellant shall be given set off. The fine amount imposed under Section
302 IPC shall be treated as fine amount imposed under Section 304 (ii) IPC. It
is reported that the accused/appellant is on bail. Hence, the concerned
Sessions Judge shall take necessary steps to secure the appellant/accused and
commit him to prison to undergo the remaining period of sentence.
With the above modification in the conviction and sentence, the criminal
appeal is dismissed.
ssm
To
1.The First Additional Sessions Judge
cum Chief Judicial Magistrate, Madurai
2.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.