{"id":155404,"date":"2007-02-20T00:00:00","date_gmt":"2007-02-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/esakkimuthu-vs-state-on-20-february-2007-2"},"modified":"2016-12-03T07:19:19","modified_gmt":"2016-12-03T01:49:19","slug":"esakkimuthu-vs-state-on-20-february-2007-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/esakkimuthu-vs-state-on-20-february-2007-2","title":{"rendered":"Esakkimuthu vs State on 20 February, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Esakkimuthu vs State on 20 February, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 20\/02\/2007\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nand\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nCriminal Appeal (MD) No.448 of 2004\n\n\nEsakkimuthu,\nS\/o.Shanmugavel\t\t\t... Appellant\/Accused\n\n\t\t\t\t\t\t\t\t\t\nVs\n\nState,\nrep. by the Inspector of Police,\nAlangulam Police Station,\nAlangulam.\nCrime No.301 of 2001\t\t... Respondent\/\t\t\t\n\t\t\t\t    Complainant\n\n\n\t \tAppeal under Section 374 of the Code of Criminal Procedure against\nthe judgment, dated 18.08.2003, of the learned Principal Sessions Judge,\nTirunelveli, in S.C.No.77 of 2002.\n\n\n!For Appellant\t \t...  Mr.A.Kajamohideen\n\n\t\t\t\t\t\t\n^For Respondent\t\t...  Mr.N.Senthurpandian,\n\t\t\t     Addl.Public Prosecutor.\n\n\n:J U D G M E N T\n<\/pre>\n
(Judgment of the Court was delivered by M.CHOCKALINGAM,J)<\/p>\n
\t\t\tThis appeal is directed against the judgment of the learned
\nPrincipal Sessions Judge, Tirunelveli Division, dated 18.08.2003 in S.C.No.77 of
\n2002, whereby the sole accused\/appellant stood charged, tried and found guilty
\nas per the charge of murder and awarded the life imprisonment and also to pay a
\nfine of Rs.2000\/-, in default to undergo six months rigorous imprisonment.\n<\/p>\n
\t\t2.The short facts necessary, sans unnecessary facts, for the
\ndisposal of the appeal can be stated thus:\n<\/p>\n
\t\t(a)P.W.1 Vellammal is the wife of the deceased and P.W.2
\nKarpagavalli is their foster daughter.  P.W.6 Sermakkani is the mother of P.W.2.
\nP.W.9 Sudalaimuthu is the brother of the deceased. They are all residents of
\nKaruvanallur.  The accused\/appellant also belongs to the same place.\n<\/p>\n
\t\t(b)One year prior to the occurrence, the deceased Chellaiah borrowed
\na sum of Rs.1,000\/- from the accused on interest, but it was not repaid even
\nafter many demand by the accused.  There was a dispute over the rate of interest
\nbetween the accused and the deceased.  At one point of time, the deceased made
\nan attempt to repay the said amount through P.W.9, but the accused was not ready
\nto receive the same.  The accused was adumbrating that his father died due to
\nthe invocation of supernatural elements by the deceased and he was challenging
\nthat he would finish him off.\n<\/p>\n
\t\t(c)On 13.07.2001, at about 9.00 p.m. in the night, P.W.1, P.W.2 and
\nthe deceased went to witness the programmes in the television set belonged to
\nthe panchayat.  While P.Ws.1 and 2 were witnessing, the deceased came back early
\nin order to go to his work in the morning.  Both P.Ws.1 and 2 were returning
\nhome at about  00.30 a.m. in the night and at that time the electric light in
\nthe verandah was burning.  They saw the accused, armed with an aruval, actually
\nattacking the deceased who was lying in the cot put on the verandah and on
\nseeing them, the accused left the place of occurrence.  When they went near the
\ndeceased, they found him dead.  Thereafter, both P.W.1 and P.W.2 went to
\nSeethaparpanallur Police Station, which is  an Outpost Police Station attached
\nto Alangulam Police Station, where P.W.1  narrated about the occurrence happened
\nin her house to P.W.11, the Sub-Inspector of Police, at 1.00 a.m. on 14.07.2001,
\nwho in turn recorded the same and obtained the signature of P.W.1 in it after
\nread it over to her.\n<\/p>\n
\t\t(d)On the strength of Ex.P-1, the complaint, P.W.11 at 2.30 a.m. on
\n14.07.2001 registered a case in Crime No.301\/2001 under Section 302 IPC and
\nprepared Ex.P-7 Express FIR.  He despatched the same to the Court through P.W.12
\nHead Constable and the same was handed over to the Judicial Magistrate at 5.30
\na.m. by P.W.12.  Ex.P-8 is the passport given to P.W.12.  A copy of the FIR was
\nsent to the Inspector of Police,  Pavoorchathithram, who was in-charge of
\nAlangulam Police Station also, for investigation.\n<\/p>\n
\t\t(e)P.W.15, the Inspector of Police, on receipt of copy of Ex.P-7
\nFIR, took up the investigation, proceeded to the scene of occurrence, made an
\nobservation and prepared Ex.P-2, the observation mahazar, in the presence of
\nP.W.7 and another.  He also drew Ex.P-15, the rough sketch.  He conducted
\ninquest over the dead body of Chelliah between   4.00 and 7.00 a.m. in the
\npresence of Panchayatdars.  Ex.P-16 is the inquest report prepared by him.  He
\nenquired P.W.1 and recorded her statement. Thereafter, he sent the body for
\npostmortem to the Government Hospital through P.W.13 Constable with Ex.P-4
\nrequisition.  He recovered M.O.2 bloodstained cement mortar, M.O.3 sample cement
\nmortar and M.O.7 Iron cot under Ex.P-3 mahazar attested by witnesses.  He
\nexamined P.Ws.2 to 7, P.W.8 and others and recorded their statements.\n<\/p>\n
\t\t(f)P.W.8, the Doctor attached to Tirunelveli Medical College
\nHospital, conducted autopsy on the body of the deceased at 10.30 a.m. on
\n14.07.2001 and gave Ex.P-5 Postmortem Certificate opining that the deceased
\nwould appear to have died of shock and haemorrhage due to multiple heavy cut
\ninjuries. After postmortem, P.W.13 recovered M.Os.4 to 7, personal wearing
\napparels of the deceased, from the body and handed over the same in the police
\nstation.\n<\/p>\n
\t\t(g)Pending investigation, P.W.15, the Inspector of Police, arrested
\nthe accused at 9.00 p.m. on the same day in the presence of P.W.10 and another.
\nWhen enquired, the accused voluntarily gave a confessional statement, admissible
\nportion of it is marked as Ex.P-17, pursuant to which the accused produced M.O.1
\naruval and the same was recovered under Ex.P-6 mahazar attested by witnesses.
\nThereafter, he sent the  accused to the judicial remand and also sent the
\nmaterial objects to the Court.\n<\/p>\n
\t\t(h)On 17.07.2001, P.W.15, the Inspector of Police, gave Ex.P-10, the
\nrequisition, to the Magistrate to subject the material objects recovered from
\nthe place of occurrence, from the body of the deceased and pursuant to the
\nconfessional statement of the accused to chemical analysis by the Forensic
\nDepartment, which resulted in two reports, namely Ex.P-12, the Chemical
\nExaminer’s Report and Ex.P-14, the Serologist’s Report which were received in
\nthe Court.   Ex.P-10 is the letter of the Court to the Forensic Department.
\nSince P.W.15 was transferred, P.W.16 took up the further investigation in the
\ncase. On completion of investigation, P.W.16, the Inspector of Police, filed the
\nfinal report in the case against the accused under Section 302 IPC on
\n30.08.2001.\n<\/p>\n
\t\t3.The case was committed to the Court of Session and necessary
\ncharge was framed. To substantiate the charge levelled against the accused, the
\nprosecution marched 16 witnesses as P.Ws.1 to 16 and relied on Exs.P-1 to P-17
\nas well as M.Os.1 to 7.  On the completion of the evidence on the side of the
\nprosecution, the accused was questioned under Section 313 of the Code of
\nCriminal Procedure as to the incriminating circumstances found.   The  accused
\ndenied them as false.  No witness was examined on the side of the defence.  The
\ntrial court heard the arguments advanced on either side and took the view that
\nthe the prosecution has proved its case beyond reasonable doubt and found the
\naccused\/appellant guilty under Section 302 IPC and awarded the life
\nimprisonment. Hence the appeal has arisen before this Court.\n<\/p>\n
\t\t4.Advancing his arguments on behalf of the appellant, the learned
\ncounsel would submit that in the instant case, according to the prosecution,
\nP.Ws.1 and 2 were the eye-witnesses, but they could not have seen the occurrence
\nat all.  He further submitted that P.Ws.1 and 2 are the close relatives of the
\ndeceased, being the wife and foster daughter and according to them, the
\noccurrence had taken place at about 00.30 a.m. on 14.07.2001, but the occurrence
\ncould not have taken place at all at that time, in view of the medical opinion
\ncanvassed by the prosecution.  It is the further submission of the learned
\ncounsel, according to the postmortem Doctor P.W.8, after sustaining the injuries
\nfound on his body, the deceased would have lived 5 to 10 minutes, but according
\nto P.Ws.1 and 2 when they went near the deceased they found him dead.  Learned
\ncounsel would further add that according to P.W.1 all of them took food by 7.00
\np.m. on 13.07.2001 and according to the postmortem Doctor the stomach contained
\n400 grams of cooked rice particles in early phase of digestion and he would
\nfurther state that the occurrence would have taken place one or one and half-an-
\nhour from the time of consumption of the food and if it is so, the occurrence
\ncould not have taken place at 00.30 a.m. on 14.07.2001 as put-forth by P.Ws.1
\nand 2 and thus they could not have seen the occurrence at all and hence the
\nevidence of P.Ws.1 and 2 has got to be rejected.\n<\/p>\n
\t\t5.Learned counsel for the appellant would further add that in the
\ninstant case, it is highly doubtful whether P.Ws.1 and 2 proceeded to the
\noutpost police station and could have given the report at 1.00 a.m. on
\n14.01.2001, for the reason that when there were number of relatives,  the theory
\nof P.Ws.1 and 2, who were the women folks, went over the police station situated
\nfour kilometres away from the scene of occurrence alone was highly improper and
\nunbelievable.  Apart from this, in the instant case, five injuries were noticed
\nby the postmortem doctor and it is also mentioned in the postmortem certificate
\nEx.P-5, but P.Ws.1 and 2 could not give proper account for that injuries found
\non the body of the deceased and if that be so, it would also add that P.Ws.1 and
\n2 could not have seen the occurrence at all.  Further, in the instant case, the
\nprosecution placed reliance and the lower court also accepted the so-called
\ntheory of the so-called arrest of the accused at 9.00 p.m. on 14.07.2001, and
\nthe alleged confessional statement made by the accused and also recovery of the
\nweapon M.O.1 Aruval, but P.W.1 has categorically admitted that at 4.00 a.m. on
\n14.07.2001 the accused was brought to the police station and if that be so, all
\nthese alleged voluntary confession and recovery of weapon are all nothing but
\nplanted for the purpose of prosecution case and hence it could not be accepted.
\nAdded further the learned counsel submitted that in the instant case, so many
\ndiscrepancies were found and despite the same, the lower court, without
\nconsidering the factual position, had taken an erroneous view that the accused
\nhas committed the offence and therefore the appellant is entitled for an
\nacquittal in the hands of this Court.\n<\/p>\n
\t\t6.The Court heard the learned Additional Public Prosecutor appearing
\nfor the State on the above contentions.\n<\/p>\n
\t\t7.The Court paid its anxious consideration to the submissions made
\non either side and also made a thorough scrutiny of the available materials.\n<\/p>\n
\t\t8.It is not the fact in controversy that one Chelliah, the husband
\nof P.W.1, was done to death in an occurrence that took place at the time and
\nplace as put-forth by the prosecution.   In order to appreciate the fact that
\nthe deceased died due to homicidal violence, the prosecution has marched the
\nevidence of medical person as a witness and he has also issued a certificate,
\nmarked as Ex.P-5 opining that the deceased would have died out of  shock and
\nhaemorrhage due to multiple heavy injuries. This fact that the deceased died due
\nto homicidal violence was never called in question by the accused  either before
\nthe trial court or before this Court.   Therefore, it can be safely concluded
\nthat the deceased died out of homicidal violence.\n<\/p>\n
\t\t9.In order to substantiate its case, the prosecution relied on the
\ndirect evidence by marching P.Ws.1 and 2, who are the wife and foster daughter
\nof the deceased, respectively.  The Court is mindful of the caution of the
\nsettled principle of law that in a given case like this where the eye-witnesses
\nto the occurrence are close relatives of the deceased, without exercising the
\ntest of careful scrutiny, their evidence should not be accepted.  Despite the
\nexercise of the said test, the Court is satisfied that the evidence of P.Ws.1
\nand 2 has got to be accepted.  P.Ws.1 and 2 have, in one voice, categorically
\nspoken that all of them, including the deceased, were witnessing the programme
\nin the television set in the panchayat and the deceased left for home early and
\nthey came back at 00.30 a.m. on 14.07.2001 and at that time the electric light
\nin the verandah was burning and they found the accused armed with an aruval and
\nalso actually witnessed the occurrence in which the accused cut the deceased who
\nwas lying the cot and on seeing them the accused left the occurrence place.  It
\nis their further evidence that when they went near Chelliah they found him dead.\n<\/p>\n
\t\t10.In the instant case,  it is the the contention put-forth by the
\nlearned counsel for the appellant that in view of the medical evidence the
\nevidence of the ocular testimony cannot be accepted.  It is the well settled
\nproposition of law that when there is a conflict between the evidence of ocular
\nwitnesses and the medical opinion, the ocular testimony must prevail.  In the
\ninstant case, the medical opinion, in the opinion of the Court, is also not in
\nsupport of the defence plea.  The  medical opinion of  P.W.8, the postmortem
\ndoctor, that the person who sustained those injuries noticed in Ex.P-5 would
\nhave lived for 5 to 10 minutes from the time of sustaining injuries cannot be a
\nreason to reject the testimony of P.Ws.1 and 2.  According to P.Ws.1 and 2, when
\nthey returned home from panchayat building they found the accused, armed with an
\naruval, cutting the deceased who was lying on the cot and when they came near
\nthe deceased they found him dead.  Thus it is clear that it was the
\naccused\/appellant who cut the deceased with aruval.\n<\/p>\n
\t\t11.The another circumstance pointed out by the learned counsel for
\nthe petitioner is that according to P.W.1, they had their dinner at 7.00 p.m.
\nand according to the medical evidence the occurrence should have been taken
\nplace one or one and half-an-hour from the time of consumption  of the food and
\nhence the actual occurrence should be much earlier to 00.30 a.m. and in such
\ncircumstances there is no bona fide reason to believe the version of P.Ws.1 and
\n2 that the occurrence has taken place at about 12.00 in the midnight or 00.30
\na.m.  In the instant case, the strong circumstance, according to the
\nprosecution, is that the occurrence took place at 00.30 a.m.; immediately P.Ws.1
\nand 2 rushed to the Alangulam Outpost Police Station, which is at a distance of
\nfour kilometres away from the scene of occurrence, and narrated the occurrence
\nto P.W.11, the Sub-Inspector of Police,  at about 1.00 a.m., which was reduced
\ninto writing by P.W.11, and based on the strength of the said complaint   Ex.P-
\n1, P.W.11 registered a case at 2.30 a.m. and prepared the Express FIR and the
\nFIR reached the Magistrate at 5.30 a.m.  This would go to show that a genuine
\ncase was placed before the police and a case came to be registered immediately
\nand this fact reached the Magistrate within a short span of time.  Therefore,
\nthe contention of the learned counsel in respect of the time of occurrence has
\ngot to be rejected.\n<\/p>\n
\t\t12.It is true, as rightly pointed out by the learned counsel for the
\npetitioner, that P.W.1 has admitted in her evidence that the accused was brought
\nto the police station at 4.00 a.m. on 14.07.2001.  If that be so, the arrest of
\nthe accused at 9.00 p.m. on 14.07.2001, the confession statement alleged to have
\nbeen made by the accused and the consequent recovery of the weapon have got to
\nbe rejected.  Even the rejection of that part of the prosecution case, will not
\nin any way would help the accused\/appellant.\n<\/p>\n
\t\t13.In the instant case, the prosecution by direct evidence, by
\nexamining eye-witnesses P.Ws.1 and 2, which is corroborated by medical evidence,
\nhas brought home the guilt of the accused leaving no doubt at all in the mind of
\nthe Court.  Apart from this, in the instant case, the occurrence has taken place
\nin front of the house of the deceased at  00.30 a.m. and  the appellant\/accused,
\narmed with an aruval, came to the spot and done the deceased to death by cutting
\nhim with aruval and this would be indicative of the fact that it is a pre-
\nplanned intention to cause the death and this act would fall within the ambit of
\nmurder and as one require a sentence of life imprisonment under Section 302 IPC,
\nwhich has been rightly done by the trial Court and this Court finds no reason to
\ninterfere either with the conviction or the sentence awarded by the trial court.\n<\/p>\n
\t\t14.Hence the appeal fails and the same is dismissed and the
\nconviction and sentence imposed on the appellant\/accused by the trial court is
\nhereby confirmed.\n<\/p>\n
To:\n<\/p>\n
1.The Principal Sessions Judge,
\n  Tirunelveli District,
\n  Tirunelveli.\n<\/p>\n
2.The Inspector of Police,
\n  Alangulam Police Station,
\n  Tirunelveli District.\n<\/p>\n
3. The Additional Public Prosecutor,
\n   Madurai Bench of Madras High Court,
\n   Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Esakkimuthu vs State on 20 February, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20\/02\/2007 CORAM: THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR.JUSTICE G.RAJASURIA Criminal Appeal (MD) No.448 of 2004 Esakkimuthu, S\/o.Shanmugavel … Appellant\/Accused Vs State, rep. by the Inspector of Police, Alangulam Police Station, Alangulam. Crime No.301 of […]<\/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-155404","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nEsakkimuthu vs State on 20 February, 2007 - 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\/esakkimuthu-vs-state-on-20-february-2007-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Esakkimuthu vs State on 20 February, 2007 - 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