{"id":137446,"date":"2010-06-28T00:00:00","date_gmt":"2010-06-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-sahayaraj-alias-raja-alias-vs-the-state-on-28-june-2010"},"modified":"2016-02-29T04:13:17","modified_gmt":"2016-02-28T22:43:17","slug":"s-sahayaraj-alias-raja-alias-vs-the-state-on-28-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-sahayaraj-alias-raja-alias-vs-the-state-on-28-june-2010","title":{"rendered":"S.Sahayaraj Alias Raja Alias … vs The State on 28 June, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
S.Sahayaraj Alias Raja Alias … vs The State on 28 June, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated: 28\/06\/2010\n\nCoram\nThe Honourable Mr.Justice M.CHOCKALINGAM\nand\nThe Honourable Mr.Justice M.DURAISWAMY\n\nCriminal Appeal (MD) No.173 of 2009\n\n\nS.Sahayaraj alias Raja alias Sahayam\t\t\t...Appellant\/\n\t\t\t\t\t\t\tSole Accused\n\nvs\n\nThe State, rep.by\nThe Inspector of Police,\nKombai Police Station,\nTheni District.\n(Crime No.127\/2007)\t\t\t\t\t...Respondent\/\n\t\t\t\t\t\t\t   Complainant\n\n\n\tAppeal under Section 374 of the Code of Criminal Procedure against\nthe judgment of conviction and sentence passed in S.C.No.34\/2008  on the file of\nthe learned  Additional Sessions Judge, Fast Track Court, Periyakulam, dated\n19.12.2008.\n\n!For Appellant\t ... Mr.K.Samidurai,\n\t\t     (Legal Aid Counsel).\n^For Respondent\t ... Mr.N.Senthurpandian,\n\t\t     Addl.Public Prosecutor.\n\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was made by M.CHOCKALINGAM,J)<\/p>\n
\t\tChallenge is made to the judgment of the Additional Sessions
\nDivision, Fast Tract Court, Periyakulam, dated 19.12.2008, made in
\nS.C.No.34\/2008, whereby the appellant\/sole accused stood charged under Section
\n323 and 302 IPC, tried and found guilty thereunder and imposed the punishment
\none year R.I. for the offence under Section 323 IPC and life imprisonment for
\nthe offence under Section 302 IPC, a fine of Rs.5,000\/-, in default to undergo
\nsix months simple imprisonment and both the sentences were ordered to run
\nconcurrently.\n<\/p>\n
\t\t\t2.The short facts necessary for the disposal of these appeals
\ncan be stated as follows:\n<\/p>\n
\t\t\t(a)P.W.1 Anthonimuthu is a resident of Kombai Village within
\nthe jurisdiction of the respondent police.  The deceased Kanmani @ Kannimariyal
\nis his brother Savarimuthu’s daughter and she was given in marriage to the
\naccused Sahayaraj @ Raja @ Sahayam nine years prior to the date of occurrence.
\nDuring the relevant time, the accused Sahayaraj, his wife Kanmani and their
\nthree children were living in a house belonging to P.W.6 Madasamy on the basis
\nof ‘Othi’ for a sum of Rs.25,000\/-.\n<\/p>\n
\t\t\t(b)Since the elder brother of the accused died, his family
\nmembers were living at Periyakulam and the accused wanted to shift his abode
\nalso to Periyakulam for which course of action the deceased Kanmani was not
\namenable and therefore they often used to quarrel with each other and  P.W.1 and
\nothers pacified them on such occasions.   The accused got back Rs.17,000\/- from
\nthe house owner and spent the same and when there was a dispute arose between
\nthe accused and the deceased, a panchayat was convened, wherein P.Ws.1, 5, 7 and
\n8 participated and pacified them.\n<\/p>\n
\t\t\t(c)At 6.30 p.m. on 29.07.2007, again there was a quarrel
\nbetween the accused and the deceased about shifting their abode to periyakulam
\nand at that time P.W.1, his brother Savarimuthu and his wife went to the accused
\nhouse and pacified them and returned to their house.   On the same day, at about
\n7.30 p.m. in the night, P.W.3, Jeyamani, daughter of the  spouses, came to the
\nhouse of P.w.1 and informed that there going a quarrel between their parents and
\nimmediately P.W.1, his wife and his brother Savarimuthu rushed to the house of
\naccused.  On seeing the brother of P.W.1, the accused claimed that because of
\nhis conduct only his wife is refusing to come along with him to Periyakulam and
\nsaying so the accused kicked him and Savarimuthu fell to ground and sustained
\ninjuries on his elbow and knees.  The accused also shouted at P.W.1 and went
\ninside the house and beat the deceased, for which the deceased replied “even if
\nI die, I will not come to Periyakulam and if you want to go, you go after
\ndepositing the balance othi amount of Rs.8000\/- in the name of children”.
\nImmediately, the accused took an Aruval (M.O.1) which was kept in the nearby box
\nand cut the deceased on her neck indiscriminately and the deceased Kanmani fell
\non the mat which was lying on the floor.  P.W.1 and others got frightened and
\nkept themselves away and the accused ran away towards north with the weapon of
\ncrime.  Thereafter, P.W.1 and his wife went near the deceased, lifted her and
\nfound Kanmani dead.  At the time of occurrence, the children of the accused were
\nalso present.  On hearing the noise, the neighbours also gathered there.
\nImmediately, P.W.1 rushed to the respondent Police Station and gave a complaint,
\nmarked as Ex.P-1, to P.W.17, the Sub-Inspector of Police.  P.W.17, based on
\nEx.P-1 complaint, registered a case in Crime No.177\/2007 under Section 302 IPC
\nand prepared Ex.P-15, the First Information Report, despatched the same to the
\ncourt and copies to the higher police officials for further action.\n<\/p>\n
\t\t\t(d)On receipt of copy of Ex.P-15 FIR at 10.00 p.m. on
\n29.07.2007, P.W.18, the Inspector of Police, took up the investigation, rushed
\nto the scene of occurrence at 10.30 p.m., made an observation and prepared Ex.P-
\n2, the  observation mahazar and also drew Ex.P-16, the  rough sketch, in the
\npresence of P.W.9, the Village Administrative Officer and another.  He conducted
\ninquest on the body of the deceased at 11.30 p.m. in the presence of
\npanchayatdars and witnesses and prepared Ex.P-17, the Inquest Report.  He
\nenquired the witnesses and recorded their statements.  He also caused the place
\nof occurrence to be photographed through P.W.10, the Photographer, and M.O.6
\n(series) are the photographs.  P.W.18 recovered M.O.2, the Mat, M.O.3, the
\nBloodstained Earth and M.O.4, the  Sample Earth, from the place of occurrence
\nunder Ex.P-4 Mahazar, attested by witnesses.   Thereafter, he sent the body of
\nthe deceased for postmortem through P.W.12, the Constable, with Ex.P-7, the
\nrequisition.\n<\/p>\n
\t\t\t(e)P.W.13, the Doctor attached to Government Hospital at
\nUthamapalayam, conducted autopsy on the dead body of Kanmani @ Kannimariyal at
\nabout  11.00 a.m. on 30.07.2007.  On completion of postmortem, P.W.13 issued
\nEx.P-8, the postmortem certificate, opining that the deceased would have died of
\nshock and hemorrhage due to multiple injuries sustained, 15 to 17 hours prior to
\nautopsy.   After postmortem, P.W.12, the constable, recovered M.Os.7 to 14 from
\nthe body of the deceased and handed over the same to P.W.18, the Investigation
\nOfficer.\n<\/p>\n
\t\t\t(f)P.W.14, another doctor attached to Uthamapalayam Government
\nHospital, examined one Savarimuthu, who came to the hospital for treatment along
\nwith police Memo.  On examination, the injured told to P.W.14 that in an
\noccurrence that took place at about 6.30 p.m. on 29.07.2007 near his residence
\nhe was kicked by a known person.  P.W.14 found multiple abrasions over the right
\nforearm, a small abrasion over the right knee and a small abrasion over the left
\nknee and gave treatment to the injured.  Ex.P-9 is the copy of the Accident
\nRegister issued by P.W.14 to the said Savarimuthu.\n<\/p>\n
\t\t\t(g)Pending investigation, P.W.18, the Inspector of Police,
\narrested the accused on 30.07.2007 at 1.30 p.m. in the presence of P.W.9, the
\nVillage Administrative Officer and another and recorded the voluntary
\nconfessional statement given by him and pursuant to the admissible portion of
\nhis confessional statement, marked as Ex.P-4, the accused took and produced
\nM.O.1, the Aruval and M.O.5, the bloodstained dhoti, and the same were recovered
\nby P.W.18 under Ex.P-5 mahazar attested by the same witnesses.  Thereafter, the
\naccused was sent to judicial custody.\n<\/p>\n
\t\t \t(h)On 06.08.2007, P.W.18 enquired P.W.13, the doctor who
\nconducted autopsy on the body of the deceased and recorded his statement.  He
\nalso examined P.W.14 and recorded his statement. P.W.18 gave Ex.P-11 requisition
\nto the court for subjecting the material objects recovered in the case for
\nchemical analysis, which resulted in two reports, namely Ex.P-13, the Chemical
\nExaminer’s Report and Ex.P-14, the Serologist’s Report.  P.W.18 completed the
\ninvestigation on 08.10.2007 and filed the final report against the accused under
\nSections 323 and 302 IPC.\n<\/p>\n
\t\t\t3.After committal proceedings, the case was taken on file by
\nthe Sessions Court in S.C.No.34\/2008 and necessary charges were framed.  To
\nprove the charges against the accused, the prosecution examined 18 witnesses as
\nP.Ws.1 to 18 and marked 17 documents as Exs.P-1 to P-17 and produced M.Os.1 to\n<\/p>\n
14.  On completion of the evidence on the side of the prosecution, when the
\naccused was questioned under Section 313 of the Criminal Procedure Code about
\nthe incriminating circumstances found in the evidence of prosecution witnesses,
\nhe denied all of them as false.  On the side of defence, neither  oral evidence
\nnor documental evidence was let it. The trial court, after hearing the parties,
\ntook the view that the prosecution has proved the charges against accused beyond
\nreasonable doubt, found him guilty under both the charges, convicted him
\nthereunder and awarded punishments as referred to earlier and hence this appeal
\nat the instance of the appellant.\n<\/p>\n
\t\t\t4.Advancing arguments on behalf of the appellants with all
\nvehemence, the learned counsel would submit that it is true that the prosecution
\nhas examined P.Ws.1 to 3 as eye-witnesses to the occurrence but, all these
\nwitnesses are close relatives of the deceased and apart from that, their
\nevidence is discrepant and hence the same should have been rejected by the trial
\ncourt.  Learned counsel further submitted that the medical evidence, which was
\nprojected by the prosecution through the postmortem doctor P.W.13, was not
\nconsistent with the ocular testimony.  Added further the counsel, the
\nprosecution examined P.W.14, the doctor, in respect of the injury said to have
\nsustained by one Savarimuthu but, the said said Savrimuthu was not examined and
\nunder circumstances, even without the injured being examined, the trial court
\nhas found the appellant\/accused guilty under Section 323 IPC and awarded the
\npunishment which has got to be set aside.\n<\/p>\n
\t\t\t5.Added further the learned counsel, the arrest of accused and
\nrecovery of M.Os.1 and 5 from him, pursuant to the alleged confessional
\nstatement given by him were nothing but cooked up evidence in order to
\nstrengthen the prosecution case as it is thoroughly discrepant and therefore the
\nsame should have been rejected by the trial court and thus the prosecution has
\nmiserably failed to prove its case.\n<\/p>\n
\t\t\t6.Learned counsel, advancing his second line of argument,
\nsubmitted that in the instant case the appellant\/accused had justifiable reason
\nto take his wife to Periyakulam to live there as his brother died leaving behind
\nhis wife and minor children and at the time of occurrence, when the
\nappellant\/accused made a similar request the deceased replied that even if she
\ndies, she would not go over to periyakulam and this statement got provoked the
\naccused and even after this, there is evidence to show that the quarrel was
\ncontinuing between the accused and the deceased and only in that process the
\nappellant attacked the deceased and thus his act is neither intentional nor
\nthere is any pre-meditation on the part of the appellant to do away his wife
\nand, under such circumstances, this legal position has got to be considered and
\napplied by this Court to the instant case.\n<\/p>\n
\t\t\t7.The Court heard the learned Additional Public Prosecutor on
\nall the submissions made by the counsel for the appellant and paid its anxious
\nconsideration to the submissions made on either side and perused the materials
\non record.\n<\/p>\n
\t\t\t8.It is not in controversy that one Kanmani @ Kannimariyal,
\nwife of the accused, was done to death in an incident that took place at 7.30
\np.m. on 29.07.2007.  Following the registration of a case, P.W.18, the Inspector
\nof Police, took up the investigation.  After conducting inquest, the dead body
\nwas subjected to postmortem by P.W.13, the Doctor, and after postmortem P.W.13
\nhas issued Ex.P-8, the postmortem certificate, opining that the deceased died
\ndue to shock and haemorrhage due to multiple injuries sustained.  From the above
\nevidence, it is quite clear that Kanmani @ Kannimariyal died out of homicidal
\nviolence.  Apart from that, the fact that the deceased died out of homicidal
\nviolence was never disputed by the appellant either before the trial Court or
\nbefore this Court and hence the trial judge was perfectly right in recording so.\n<\/p>\n
\t\t\t9.In order to substantiate the charges levelled against the
\nappellant, the prosecution has marched P.Ws.1 to 3 eye-witnesses to the
\noccurrence.  At the outset, it must be stated that though the prosecution has
\nexamined P.W.14, the doctor, who gave treatment to one Savarimuthu, the said
\nSavarimuthu, who is stated have sustained injuries in the same occurrence when
\nthe accused kicked him down, was not examined before the Court and in such
\ncircumstances, the Court is of the opinion that so long as the injured
\nSavarimuthu was not examined, the  judgment of conviction rendered by the trial
\ncourt under Section 323 IPC cannot be sustained and it has got to be set aside.\n<\/p>\n
\t\t\t10.Insofar as the charge of murder under Section 302 IPC is
\nconcerned, the Court is of the considered opinion that the prosecution had
\nprojected ample evidence before the trial Court.  P.Ws.1, 2 and 3 are eye-
\nwitnesses to the occurrence.  P.W.3 is the daughter of the spouses, aged about 9
\nyears at the time of giving evidence.  P.Ws.1 to 3 have, in one voice, stated
\nthat immediately upon being informed by P.W.3 and on hearing the sound, they
\nrushed to the house nearby where the accused and the deceased were living and
\nthey saw the quarrel that was going between the spouses and in that process the
\naccused cut indiscriminately on the neck of the deceased with an aruval and
\ncaused her instantaneous death.  Immediately thereafter P.W.1 has gone to the
\nplace station and a complaint was given by him to P.W.17, the Sub-Inspector of
\nPolice, following which a case was registered by P.W.17, the Sub-Inspector of
\nPolice and the investigation was taken up by P.W.18, the Inspector of Police.
\nP.W.18 has conducted inquest, recovered material objects from the scene of
\noccurrence and subjected the dead body for postmortem.  P.W.13, the doctor who
\nconducted autopsy on the body of the deceased, has categorically opined that the
\ndeceased died due to the multiple injures sustained by her.  This medical
\nopinion canvassed by the prosecution is in full corroboration with the ocular
\ntestimony.\n<\/p>\n
\t\t11.Yet another circumstance which was against the accused is
\nhis arrest and recovery of M.O.1, the weapon of crime and M.O.5, the
\nbloodstained dhoti, following the voluntary confessional statement given by him.
\nThe evidence of witnesses examined therefor by the prosecution remained unshaken
\ndespite cross-examination in full.  In such circumstances, the contention put-
\nforward by the counsel for the appellant in this regard attacking that part of
\nthe evidence cannot be accepted by the Court and thus the prosecution has proved
\nthat it was the accused who attacked the deceased with aruval on her neck
\nindiscriminately and caused her  instantaneous death and the trial court is
\nfully justified in recording a finding to that effect and there is nothing to
\ndisturb that part of the finding ny the trial court.\n<\/p>\n
\t\t12.Insofar as the 2nd line of argument advanced by the learned
\ncounsel for the appellant, the Court is able to see force in the contention put-
\nforth by the learned counsel. Even as per the evidence of P.Ws.1 to 3, who are
\nthe eye-witnesses to the occurrence, the spouses were quarrelling with each
\nother on the issue of the accused demanding the deceased to go and stay at
\nPeriyakulam from Kombai as there were justifiable reason to go over there and
\nlive, to which course the deceased was not amenable.  Further, on the date of
\noccurrence at about 6.30  p.m. there was a quarrel between the spouses and
\nP.Ws.1, 2, 4 and others pacified the spouses but the quarrel continued
\nthereafter and when P.W.3 came and informed to P.W.1 about the continued
\nquarrel, P.W.1 and P.W.2, along with P.W.3, went and saw the quarrel continuing
\neven at that point of time and when the request made by the accused was turned
\ndown by the deceased saying ‘even if she dies, she would not go over to
\nPeriyakulam’ and provoked by the same, the accused took M.O.1 aruval which was
\nkept in the nearby box, attacked her and caused her death instantaneously.
\nUnder such circumstances, this act of the accused, as rightly put-forth by the
\nlearned counsel for the appellant, is neither intentional nor premeditated.  At
\nthe same time, though it is not a case of murder, it is culpable homicide not
\namounting to murder and the Court is of the considered opinion that the act of
\nthe accused would attract the penal provision under Section 304(i) IPC and
\nawarding a punishment of 10 (ten) years rigorous imprisonment would meet the
\nends of justice and accordingly, the judgment of the trial court finding the
\naccused guilty under Section 302 IPC and awarding the punishment of life
\nimprisonment thereunder requires modification.\n<\/p>\n
\t\t\t13.In the result,\n<\/p>\n
\t(a)the judgment of trial court in so far as convicting the appellant
\nunder Section 323 IPC and  sentencing him to undergo one year rigorous
\nimprisonment thereunder is set aside and he is acquitted of the said charge.\n<\/p>\n
\t\t(b)Insofar as the judgment of the trial court convicting the
\nappellant under section 302 IPC and sentencing to undergo life imprisonment, the
\nsame is set aside and instead the appellant\/accused is convicted under Section
\n304(i) IPC and sentenced to undergo ten years rigorous imprisonment.  The fine
\namount imposed under Section 302 IPC, with default clause, by the trial court is
\nordered to be treated as one imposed under Section 304(i) IPC.  The period of
\nimprisonment already undergone by the appellant\/accused is directed to be given
\nset-off under the modified sentence.\n<\/p>\n
\t\tThe criminal appeal is accordingly disposed of.\n<\/p>\n
gb<\/p>\n
To<\/p>\n
1.The Principal Sessions Judge,
\n  Theni District, Theni.\n<\/p>\n
2.Additional Sessions Judge,
\n  Fast Track Court,
\n  Periyakulam, Theni District.\n<\/p>\n
3.The Inspector of Police,
\n  Kombai Police Station,
\n  Theni District.\n<\/p>\n
4.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.Sahayaraj Alias Raja Alias … vs The State on 28 June, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 28\/06\/2010 Coram The Honourable Mr.Justice M.CHOCKALINGAM and The Honourable Mr.Justice M.DURAISWAMY Criminal Appeal (MD) No.173 of 2009 S.Sahayaraj alias Raja alias Sahayam …Appellant\/ Sole Accused vs The State, rep.by The Inspector […]<\/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-137446","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS.Sahayaraj Alias Raja Alias ... vs The State on 28 June, 2010 - 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\/s-sahayaraj-alias-raja-alias-vs-the-state-on-28-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.Sahayaraj Alias Raja Alias ... vs The State on 28 June, 2010 - 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