{"id":105001,"date":"2008-03-12T00:00:00","date_gmt":"2008-03-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pechimuthu-vs-state-rep-by-on-12-march-2008"},"modified":"2017-08-20T18:15:16","modified_gmt":"2017-08-20T12:45:16","slug":"pechimuthu-vs-state-rep-by-on-12-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pechimuthu-vs-state-rep-by-on-12-march-2008","title":{"rendered":"Pechimuthu vs State Rep By on 12 March, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Pechimuthu vs State Rep By on 12 March, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED :12\/03\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE S.PALANIVELU\n\nCrl.A.No.19 of 2007\n\nPechimuthu\t\t\t\t..  Appellant\n\n\nVs.\n\n\nState rep by\nThe Inspector of Police,\nKayatar Police Station,\nTuticorin District\n(Crime No.342\/2005)\t\t\t..  Respondent\n\n\nPRAYER\n\nThis criminal appeal has been preferred under Section 374 (ii) Cr.P.C\nagainst the judgment dated 03.08.2006 made in S.C.No.110 of 2006 by the\nAdditional District Sessions Judge (Fast Track Court No.2) Tuticorin.\n\n!For Appellant   ... Mr.S.Durairaj\n\n^For Respondent  ... Mr.V.Kasinathan\n\t\t     Additional Public Prosecutor\n\t\t\t\n\n\n:JUDGMENT\n<\/pre>\n
(The judgment of the court was made by M.CHOCKALINGAM, J.)<\/p>\n
\tChallenge is made to the judgment of the Additional Sessions Division,
\nFast Track Court No.2, Tuticorin, made in S.C.No.110 of 2006, whereby the sole
\naccused\/appellant stood charged, tried, found guilty under Section 302 I.P.C.
\nand awarded life imprisonment along with fine and default sentence.\n<\/p>\n
\t2. The short facts necessary for the disposal of the appeal could be
\nstated thus:-\n<\/p>\n
\ta)P.W.1 is the junior paternal uncle and P.W.2 is the mother of the
\ndeceased. P.W.3 is the daughter of the deceased, and P.Ws.6 and 7 are the
\nbrothers of the deceased. The accused is the husband of the deceased.  Eleven
\nyears prior to the occurrence, the marriage took place between the deceased and
\nthe accused.  The accused left for Mumbai to eke out livelihood for the family.
\nHe used to visit on intervals. During his stay, he lived with his wife in the
\nnative place at Panneerkulam.  Shortly, a few months prior to the occurrence, he
\ncame to the native place and suspected the fidelity of his wife.  They had often
\nquarrel on this issue.   On the date of occurrence, i.e., on 18.09.2005, as
\nusual, the accused was quarreling with his wife suspecting the fidelity.  P.W.1
\nintervened and pacified them and left the house for goat grazing.  At about 3.00
\np.m. when he came back, the house of the deceased was found locked and P.W.2
\nwent to the house of P.W.3.  At about 9.00 p.m, both P.Ws.2 and 3 returned back
\nto the house.  They found that the house was locked and the same was reported to
\nP.W.1.  Then, P.Ws.1 to 3 along with P.W.7 jointly made a search of the
\ndeceased, but in vain.  When they returned back at 12.00 midnight, P.W.7 saw
\nthrough the side window by using a torch light. They were able to see the dead
\nbody of the deceased in a pool of blood. They broke open the door in the
\npresence of P.W. 5, who is the  Village Assistant, got inside the house and
\nfound the dead body of the deceased.\n<\/p>\n
\tb) At about 4.30 p.m. on that day, P.W.10 was standing nearby the tea
\nstall. Accused met him on his way and informed him that he had committed the
\nmurder of his wife. P.W.10, advised him to surrender before the police.\n<\/p>\n
\tc)Following the occurrence, P.Ws.1 and 5, went to the respondent police on
\n19.09.2005, at 8.00 a.m, where P.W.18, the Sub-inspector of Police was on duty.
\nThey gave a complaint in oral, which was reduced into writing and marked as
\nEx.P.1. On the strength of Ex.P-1, a case came to be registered in Crime No.345
\nof 2005 under Section 302 IPC. Ex.P.15, the express FIR, along with Ex.P.1, was
\nsent to the concerned Judicial Magistrate’s Court.\n<\/p>\n
\td)On receipt of the copy of FIR, P.W.19, the Inspector of Police, took up
\nthe investigation, proceeded to the place of occurrence and made arrangement to
\ntake photographs through P.W.15. Then, he made an observation in the presence of
\nrespective witnesses and prepared Ex.P.11, the Observation mahazar, and Ex.P.16,
\nthe rough sketch. P.W.19, the Investigating Officer, recovered M.Os.1 to 11 from
\nthe place of occurrence under a cover of mahazar. Further, he enquired and
\nrecorded the statements of the witnesses.   He conducted inquest on the dead
\nbody of the deceased in the presence of  witnesses and panchayatdars and
\nprepared an inquest report, marked as Ex.P.17.\n<\/p>\n
\te)The dead body of the deceased was sent to the hospital, for the purpose
\nof autopsy.  P.W.12, the Doctor, attached to Kayattar Government Hospital, on
\nreceipt of the requisition, conducted autopsy on the dead body of the deceased
\nand issued Ex.P.19, the post-mortem certificate, wherein he has opined that the
\ndeceased would appear to have died due to shock and hemorrhage and the injuries
\nsustained, between 12 to 14 hours prior to autopsy.\n<\/p>\n
\tf)Pending investigation,  the accused surrendered before the Judicial
\nMagistrate, Tirunelveli, on 22.09.2005, which came to the knowledge of the
\ninvestigator.  He applied for Police custody and the same was ordered.  He was
\ntaken on 30.09.2005 into police custody. On interrogation, he gave a
\nconfessional statement voluntarily and the same was recorded, the  admissible
\npart of which was marked as Ex.P.13.  On the strength of which, the accused
\nproduced M.O 12, the shirt, which was recovered under a cover of mahazar,
\nEx.P.14. All these M.Os were sent for the purpose of analysis by the Forensic
\nDepartment, which resulted in two reports, namely, Ex.P.4, Chemical analyst’s
\nreport and Ex.P.5, the Serologist’s report. On completion of the investigation,
\nthe Investigating Officer filed the final report before the concerned court,
\nwhich, in turn, committed the case to the court of sessions and necessary
\ncharges were framed, and the case was taken up for trial.\n<\/p>\n
\tg) In order to substantiate the charges, at the time of trial, the
\nprosecution examined 20 witnesses and relied on 17 exhibits and 12 M.Os.  On
\ncompletion of the evidence on the side of the prosecution, the accused\/appellant
\nwas questioned under Section 313 Cr.P.C. as to the incriminating circumstances
\nfound in the evidence of prosecution witnesses. He denied them as false.  No
\ndefence witness was examined. After hearing the arguments of the counsel and
\nscrutinizing the evidence, the lower court, took the view that the prosecution
\nhas proved the case beyond reasonable doubt and found him guilty and awarded the
\npunishment as referred to above, which is the subject of challenge before this
\nCourt.\n<\/p>\n
\t3.Advancing arguments on behalf of the appellant, Mr.D.S.Durairaj, learned
\nCounsel, made the following submissions:-\n<\/p>\n
\ta)The prosecution has miserably failed to prove the case before the trial
\nCourt. In the instant case, the prosecution had no direct evidence to offer.
\nThe entire case rested only upon the circumstantial evidence. Prosecution
\nneither placed sufficient circumstances nor proved its case. But, the trial
\nCourt erroneously took the view  and found the accused guilty. The prosecution
\nrelied upon the  evidence of P.Ws.1 and 3 for  last seen theory.  P.W.1 is the
\nfather and P.W.3 is the daughter of the deceased.  According to P.W.1, when the
\naccused\/appellant and the deceased were quarreling at about 1.00 p.m., he
\npacified.  If to be so, there was no reason for the accused\/appellant to commit
\nsuch offence.  Further according to P.W.1, when he came by 3.00 p.m, the house
\nwas kept locked and left again in search of her.  Even till 12.00 midnight they
\ncould not trace her. The evidence of P.W.1, was highly improbable. In the
\ninstant case, according to him, they came to know as to the death of Gomu only
\nat 12.00 midnight, and they have given a complaint on the next day morning at
\nabout 8.00 a.m. There was a delay of 12 hours.  Had it been true, they should
\nhave rushed and informed to the police  immediately, and that would indicate
\nthey did not entertain suspicion against the accused. Therefore, the last seen
\ntheory is purely nothing but an introduction in order to fasten the criminal
\nliability on the accused.\n<\/p>\n
\tb. Added further, in the instant case, medical opinion did not support the
\ncase of the prosecution, and the alleged confession pending the police custody
\nand the recovery of M.O.12, the shirt is in question, have nothing to do with
\nthe incriminating circumstances pointing to the guilt of the accused.  In any
\nway, the prosecution has not proved the case beyond reasonable doubt.\n<\/p>\n
\tc.Added further, in the instant case, even if it is true that it was the
\naccused who smashed her with the stone as put forth by the prosecution, the act
\nof the accused would not attract the penal provision of murder.  Even as per the
\nprosecution case, he suspected the fidelity of his wife.  There was often
\nquarrel, and P.W.1, now and then, intervened and pacified them.  Even just
\nbefore the date of occurrence, they were quarreling regarding the fidelity, and
\ndue to  sudden provocation, he has acted so. Under such circumstances, the act
\nof the accused was neither intentional nor premeditated; but,  the act of the
\naccused is only culpable homicide, not amounting to murder. Hence, this legal
\naspect has got to be considered by this Court.\n<\/p>\n
\t4.The Court heard the learned Additional Public Prosecutor on the above
\ncontentions and paid its anxious consideration on the above submissions made and
\nalso scrutinized the materials available.\n<\/p>\n
\t6. The fact that one Gomu was done to death in an incident that took place
\ninside the house on 18.09.2005 is not in controversy. Following the inquest made
\nby the investigator, the dead body was subjected to post-mortem by P.W.12, the
\ndoctor.  He has categorically stated during the evidence and also opined through
\nhis post-mortem certificate, marked as Ex.P.7, that the deceased died out of
\nshock and haemorrhage.   The fact that she died out of homicidal violence was
\nnever disputed by the accused\/appellant, and hence, without any impediment, it
\ncould be safely recorded so.  It is true that the prosecution had no direct
\nevidence to offer.  But the prosecution has sufficient circumstances to place
\nand to prove the complicity of the offender, namely, the accused\/appellant.  On
\nthe date of occurrence, namely  18.09.2005, P.W.1 has seen the accused and the
\ndeceased  quarreling at about 1.00 p.m, pacified and  left.  When he came back
\nto the house at 3.00 p.m, he found the house of the  deceased  locked.  It is
\npertinent to point out that at about 12.00 midnight, when the house was broken
\nopen, the deceased was found in a pool of blood.  Therefore, the occurrence
\nshould have been taken place between  1.00 and   3.00.  Just 15 minutes prior to
\nthe visit of P.W.1,  the accused was only present in the company of the
\ndeceased.  The accused had no explanation to offer how the death  occurred to
\nhis wife.  It is pertinent to point out that he has also made a confessional
\nstatement.  P.W.10 is an independent witness.  There is no reason for a person
\nlike P.W.10 to come before a Court of law to implicate the accused, if he was
\nnot offered with  the confessional statement. The evidence of P.Ws.1 and 3, the
\nlast seen theory and also the evidence of  P.W.10 to whom the  extra judicial
\nconfession was  given  fully supported the case of the prosecution.  Thus, all
\nwould  indicate the guilt of the accused.  Apart from that, medical opinion
\ncanvassed through the post-mortem certificate, was also in favour of the
\nprosecution.\n<\/p>\n
\t7.It is true that an occurrence took place at 2.45 p.m on the previous
\nday, and the report was given on the next day at 8.00 clock by P.W.1, i.e., on
\n19.09.2005.  At this juncture, it is pertinent to point out that they came to
\nknow about the occurrence only after they  broke open the door at 12.00 midnight
\ni.e., On 18.09.2005 and also they had to go to the Police Station from their
\nvillage, which is situated 5 Kms away.  Added further, in the instant case,
\nthey have clear knowledge that it was the accused, who committed the crime.
\nAdmittedly there was a delay; but  this delay would in no way cause any
\nprejudice to the case of the prosecution and for the  mere delay, it cannot be
\nrejected.  Apart from this, even in the First Information Report, they have
\nnarrated the entire incident as to the search of the deceased and on the face of
\nconfessional statement, there was recovery from him. Thus, all would go to show
\nthat the prosecution has  proved the fact that it was the accused who was in the
\ncompany of the deceased and after smashing her with stone, the accused\/appellant
\nfled away from the house after locking the door.\n<\/p>\n
\t7.Now, insofar as the second line of argument, the Court is able to see
\nforce in the contention put forth by the counsel that all along in the past,
\nthey had been quarreling, since the accused entertained suspicion over her
\nfidelity.  Even as per the evidence of P.W.1,  on the date of occurrence at
\nabout 1.00 p.m, they were quarreling. P.W.1 has also given a report to the
\neffect that in view of quarreling between them and also suspension over the
\nfidelity of his wife, he has committed the crime.  It would be quite clear that
\nthere was a wordy altercation, as a result of which, he has committed so.
\nThus, it  would be indicative of the fact that the act of the accused was
\nneither intentional nor premeditated, but  due to the sudden quarrel that arose
\nbetween them, the occurrence took place Hence, this is a fit case where a
\nfinding can be recorded that the accused\/appellant was not guilty of the offence
\nof murder, but his act was only culpable homicide not amounting to murder which
\nwould attract the penal provision of Section 304(1) IPC and awarding a
\npunishment of seven years would meet the ends of justice.\n<\/p>\n
\t8.Accordingly, the conviction and sentence awarded under Section 302 IPC
\nare set aside and instead the accused\/appellant is convicted under Section
\n304(1) IPC and sentenced to undergo seven years R.I.  The fine amount imposed
\nunder Section 302 IPC shall be treated as fine amount under Section 304 (1) IPC.
\nThe period of imprisonment already  undergone by the accused\/appellant, shall be
\ngiven set off.\n<\/p>\n
\tWith the above modification in conviction and sentence, this appeal is
\ndismissed.\n<\/p>\n
ssm<\/p>\n
To<\/p>\n
1.The Additional Sessions Judge
\n  (Fast Track Court No.2) Tuticorin.\n<\/p>\n
2.The Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Pechimuthu vs State Rep By on 12 March, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :12\/03\/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.A.No.19 of 2007 Pechimuthu .. Appellant Vs. State rep by The Inspector of Police, Kayatar Police Station, Tuticorin District (Crime No.342\/2005) .. Respondent […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-105001","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nPechimuthu vs State Rep By on 12 March, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pechimuthu-vs-state-rep-by-on-12-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pechimuthu vs State Rep By on 12 March, 2008 - 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