BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/02/2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE G.RAJASURIA CRL.A.No.689 of 2004 Thavasi .. Appellant vs The State of Tamilnadu rep. by Inspector of Police Uthappanaickanoor Police Station Madurai District Cr. No.50 OF 2003 .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Madurai, in S.C.No.418/2003 dated 12.3.2004. !For Appellant : Mr.K.Jeganathan ^For Respondent : Mr.A.Balaguru Additional Public Prosecutor :JUDGMENT
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.)
The sole accused in a case of murder in S.C.No.418/2003 on the file of the
Principal Sessions Division, Madurai, whereby he stood charged, tried, found
guilty as per the charge of murder and awarded life imprisonment along with a
fine of Rs.1,000/- and default sentence, has challenged the said judgment of
conviction and sentence in this appeal.
2.The short facts necessary for the disposal of this appeal can be stated
thus:
(a) P.W.1 is the daughter of the deceased Sadamayathevar. The said
deceased had four brothers, out of whom two already died. The accused was one
of the brothers of Sadamayathevar. They had joint family properties, and for
the purpose of partition, a panchayat was convened on the date of occurrence
i.e., 8.5.2003. In that panchayat, Palusamy, Deepavali, Singam and others were
the panchayatdars. The panchayat did not fructify, since there was a mortgage
debt payable by the joint family. But, the accused was not ready to pay the
same. Since no decision was taken, the panchayatdars dispersed from the place.
The deceased went to his house. The accused also went to his house. At about
1.00 P.M., he came to the house of the deceased and attacked him with a wooden
rafter, which is marked as M.O.1. As a result of the attack, the said
Sadamayathevar met with an instantaneous death. Thereafter, the accused fled
away from the place of occurrence. The matter was reported to the respondent
Police Station by P.W.1. She gave a complaint, which is marked as Ex.P1. On
the strength of the complaint, Ex.P1, P.W.13, the Sub Inspector of Police,
registered a case in Crime No.50/2003 under Sec.302 of I.P.C. against the
appellant/accused. The First Information Report, Ex.P6, was despatched to the
concerned Court.
(b) P.W.14, the Inspector of Police, on receipt of the copy of the F.I.R.,
took up investigation, proceeded to the spot, made an inspection and prepared
Ex.P7, the observation mahazar, and Ex.P8, the rough sketch. He recovered
M.O.1, wooden rafter, M.O.3, bloodstained earth, and M.O.4, sample earth, under
a cover of mahazar. Then, he conducted inquest on the dead body of
Sadamayathevar in the presence of witnesses and panchayatdars and prepared
Ex.P10, the inquest report. Thereafter, the dead body was sent to the
Government Hospital along with a requisition, Ex.P4, for the purpose of autopsy.
(c) P.W.5, the Assistant Surgeon, attached to the Government Hospital,
Usilampatti, on receipt of the said requisition, conducted autopsy on the dead
body of Sadamayathevar and found 3 external injuries. She issued a postmortem
certificate, Ex.P5, with her opinion that the deceased would appear to have died
of multiple fracture in the skull with bleeding and blood clots in that area of
brain.
(d) Pending the investigation, the Investigating Officer arrested the
accused on 9.5.2003. Though he gave a confessional statement, there was no
recovery made. All the material objects recovered from the place of occurrence
and from the dead body, were subjected to chemical analysis which resulted in
two reports namely Ex.P13, the Chemical Analyst’s report, and Ex.P14, 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 14
witnesses and also relied on 14 exhibits and 4 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. After hearing the arguments advanced on either side, the
trial Court took the view that the prosecution has proved the case beyond
reasonable doubt, found him guilty as per the charge and awarded life
imprisonment along with fine and default sentence, which is the subject matter
of challenge before this Court.
4.Advancing his arguments on behalf of the appellant, the learned Counsel
would submit that in the instant case, except P.W.1, all other witnesses, who
according to the prosecution, are eyewitnesses, have turned hostile; that P.W.1
was the daughter of the deceased, and thus, she was an interested witness; that
there was also prevailing enmity between the families and in particular, between
her father, the deceased, and the appellant/accused; that under the
circumstances, she has come with the false evidence as if she has seen the
occurrence; that the medical evidence did not corroborate the prosecution case;
that though arrest was shown, according to the Investigating Officer, there was
no recovery at all; that in the instant case, the only piece of evidence that
was available was that of P.W.1, which remained unacceptable; but, the lower
Court has based its conviction on her evidence as her testimony can be believed;
that even assuming that the case of the prosecution that it was the accused who
attacked the deceased with the wooden rafter at the time and place of occurrence
and caused his death is proved, the act of the accused would not attract the
penal provisions of murder; that even according to the prosecution, there was a
panchayat, and it did not fructify, and all the panchayatdars dispersed, and the
deceased and the accused also went away from the place; that as continuing
transaction, the occurrence has taken place; that even as per the charge sheet,
it could be seen that since the panchayat failed, in that mood, he came over
there, and due to that provocation, he has actually attacked him; that apart
from that, even the witnesses have spoken to the fact that there was a quarrel
that preceded; that the accused has come to the place unarmed; that there was
also a wooden rafter which was nearby; that in that quarrel, he took it and
attacked him, and thus, the act of the accused was neither wanton nor deliberate
nor intentional, and under the circumstances, it has got to be considered by the
Court.
5.The Court heard the learned Additional Public Prosecutor on the above
contentions.
6.In the instant case, it is not a fact in controversy that
Sadamayathevar met his homicidal death at the place and time of occurrence. In
order to substantiate the same, the prosecution examined the postmortem Doctor,
through whom the postmortem certificate has been marked, wherein she has opined
that the deceased died out of multiple fracture in the skull with bleeding and
blood clots in that area of brain. Apart from that, the fact that he died out
of homicidal violence was never questioned by the appellant/accused at any point
of time. Hence, it has got to be recorded so.
7.In order to establish that it was the accused who attacked
Sadamayathevar, the prosecution though examined number of eyewitnesses, except
P.W.1, all others have turned hostile. It is true that P.W.1 was the daughter
of the deceased. It is well settled proposition of law that merely because of
the relationship of the eyewitnesses with the deceased, their evidence cannot be
discarded; but, it must be subjected to careful scrutiny. Despite the exercise
of careful scrutiny, the evidence of P.W.1 stood the test, and the lower Court
was perfectly correct in accepting her evidence. That apart, the medical
evidence was also canvassed through P.W.5, the Doctor, and the postmortem
certificate has also been marked through her. The Doctor has categorically
opined that by using M.O.1, wooden rafter, the injuries on the skull could be
caused, and apart from that, as a consequence of the same, death could ensue.
Under the circumstances, without any hesitation, it can be stated that the
ocular testimony of P.W.1, which stood fully corroborated through the medical
evidence, would be sufficient to hold that it was the accused who caused the
death of Sadamayathevar.
8.Now, coming to the question as to the act of the accused, this Court is
able to see sufficient force in the contentions put forth by the learned Counsel
for the appellant that there was a panchayat preceded; that the panchayat did
not fructify; that all the persons dispersed from the place of occurrence; that
since the panchayat did not fructify, the appellant/accused got provoked, and
with that provocation, he went to the house of the deceased. It is pertinent to
point out that when he went over there, he was actually unarmed. Even according
to the witnesses, there was a quarrel that preceded. At that juncture, he took
a wooden rafter which was by the side, and attacked him on the head. Under the
circumstances, it cannot be stated that he went over there with any plan to
cause death. Thus, it was neither premeditated nor pre-planned; but, it was due
to a sudden quarrel. From the evidence, it would be quite evident that since
the panchayat did not fructify, he went over there, and due to the sudden
quarrel, he took M.O.1, the wooden rafter, that was also by the side, and
attacked him. But, at the same time, the act by which the death is caused, is
done by him with the intention of causing such bodily injury as is likely to
cause death. Under the circumstances, it would attract the penal provisions of
Sec.304 (Part I) of I.P.C. This Court is of the view that awarding 7 years
Rigorous Imprisonment would meet the ends of justice. Hence, the judgment of
the lower Court finding him guilty under Sec.302 of I.P.C. and awarding life
imprisonment, is modified, and instead, the appellant is convicted under Sec.304
(Part I) of I.P.C., for which he is directed to suffer 7 years Rigorous
Imprisonment. The fine and the default sentence awarded by the lower Court, are
confirmed.
9.In the result, with the above modification in conviction and sentence,
this criminal appeal is dismissed.
To:
1)The Principal Sessions Judge
Madurai
2)Inspector of Police
Uthappanaickanoor Police Station
Madurai District
(Cr. No.50/2003)
3)The Public Prosecutor
Madurai Bench of Madras High Court