{"id":162674,"date":"2007-03-12T00:00:00","date_gmt":"2007-03-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thavasi-vs-state-rep-by-on-12-march-2007"},"modified":"2018-01-13T21:47:35","modified_gmt":"2018-01-13T16:17:35","slug":"thavasi-vs-state-rep-by-on-12-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thavasi-vs-state-rep-by-on-12-march-2007","title":{"rendered":"Thavasi vs State Rep. By on 12 March, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Thavasi vs State Rep. By on 12 March, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 12\/03\/2007\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\nCRIMINAL APPEAL NO.355 OF 2005\n\nThavasi\t\t..  Appellant\n\nVs.\n\nState rep. by\nthe Inspector of Police,\nRajakkamangalam Police Station,\nKanyakumari District\nCrime No.27 of 2003\t..  Respondent\n\n\n\tThis criminal appeal is preferred under Section 374 Cr.P.C against the\njudgment of the learned Sessions Judge, Kanyakumari at Nagercoil made in\nS.C.No.95 of 2003, dated 16.03.2004.\n\n\n!For Appellant  :  Mr.C.Christopher\n\n^For Respondent :  Mr.N.Senthurpandian, APP\n\n\n:JUDGMENT\n<\/pre>\n
(The judgment of the Court was made by M.CHOCKALINGAM, J.)<\/p>\n
\tChallenging the judgment of the Sessions Division, Kanyakumari District at
\nNagercoil made in S.C.No.95 of 2003, the sole accused\/appellant, who stood
\ncharged under Section 302 IPC, tried, found guilty and awarded life imprisonment
\nand also to pay a fine of Rs.1000\/-, in default to undergo one year RI, has
\nbrought forth this appeal before this Court.\n<\/p>\n
\t2.The brief facts of the prosecution case are as follows:\n<\/p>\n
\ta)P.W.1 is the brother and P.W.3 is the wife of the deceased.  P.W.2 is
\nalso the resident of the same place.  The accused also belonged to the same
\nplace.  The accused was an arrack seller. He was involved in number of cases
\nregistered by different police stations and he was fined in number of cases
\nalso. Ex.P.22 series are the certified copies of the judgments in those cases
\nand Ex.P.23 series are the xerox copies of the receipts for payments of fine.\n<\/p>\n
\tb)The accused was selling arrack in the thope of P.W.4, which is situated
\nnear the Ammankoil. The same was objected to by P.W.3 and the womenfolk of the
\nvillage. On the grievance day, they have given a petition before the Collector,
\nNagercoil and a receipt was also given and the same was also marked as Ex.P.3.
\nAn enquiry was also conducted. Hence, against P.W.3 and her family members, the
\naccused became enraged. On the previous occasion, the accused informed P.W.3
\nthat he would finish off her husband. This was informed by P.W.3 to her husband.\n<\/p>\n
\tc)On 28.01.2003 at 8.00 a.m., when the deceased met the accused, the
\ndeceased advised him to obey the rules of the village and there arose a quarrel
\nat that time.  On the same day at about 3.00 p.m., the deceased was sleeping on
\nthe parapet wall of Mutharamman Temple. At that time, P.W.1 was returning to his
\nhouse after taking bath in an odai and P.W.2 was proceeding for his business
\nnear the said temple. At that time, the accused, armed with vettu aruval, came
\nthere and attacked the deceased on his right upper arm and the deceased was
\nrunning. The accused pulled him down and stamped him and he ran away from the
\nplace of occurrence.\n<\/p>\n
\td)P.Ws.1 and 2 were the eyewitnesses to the occurrence. Immediately, they
\ntook the deceased in a car driven by P.W.6 to the Government Medical College
\nHospital, Kottar at 3.15 p.m. P.W.8, the Doctor attached to the said Hospital,
\nhas admitted him and he has issued Ex.P.10, the Accident Register.  Despite
\ntreatment, the deceased died at about 3.40 p.m. on the same day. An intimation
\nwas given to the respondent police station through the out post police station
\nof the said Hospital.\n<\/p>\n
\te)P.W.15, the Sub Inspector of Police attached to the respondent police
\nstation, on receipt of the intimation, rushed to the Government Hospital and
\nrecorded the statement of P.W.1, which was marked as Ex.P.1, on the strength of
\nwhich, a case came to be registered in Crime No.27 of 2003 against the accused
\nunder Section 302 IPC.  Ex.P.21, the FIR, was despatched to the concerned court.\n<\/p>\n
\tf)P.W.17, the Inspector of Police, on receipt of the copy of the FIR, took
\nup the investigation, proceeded to the spot, made an inspection in the presence
\nof the witnesses.  He prepared Ex.P.4, the observation mahazar and Ex.P.24, the
\nrough sketch.  He also recovered material objects from the place of occurrence
\nin the presence of the witnesses.  Then, he went to the hospital and conducted
\ninquest on the dead body of the deceased in the presence of the witnesses and
\npanchayatdars and prepared Ex.P.25, the inquest report.\n<\/p>\n
\tg)Pursuant to the requisition made by the Investigating Officer, P.W.10,
\nthe Doctor, attached to the Government Medical College Hospital, has conducted
\nautopsy on the dead body of the deceased.  He has issued Ex.P.13, the post-
\nmortem certificate, wherein he has opined that the deceased
\nwould appear to have died of shock and haemorrhage due to the injuries
\nsustained.\n<\/p>\n
\th)Pending investigation, the Investigating Officer came to know that the
\naccused surrendered before Judicial Magistrate, Valliyoor.  The accused was
\ntaken to police custody.  During police custody, the accused gave a confessional
\nstatement, which was recorded in the presence of the witnesses, the admissible
\npart of which was marked as Ex.P.19.  Pursuant to the confessional statement,
\nthe accused produced M.O.1 vettu aruval, which was recovered in the presence of
\nthe witnesses under a cover of mahazar.  Then, the accused was sent for judicial
\nremand. All the material objects recovered from the place of occurrence, from
\nthe dead body of the deceased and the M.O.1, vettu aruval recovered from the
\naccused, pursuant to the confessional statement, were sent for chemical analysis
\nby the Forensic Science Department pursuant to the requisition made through the
\nconcerned court. Ex.P.16 is the Chemical Analyst’s report and Ex.P.17 is the
\nSerologist’s report. On completion of the investigation, the Investigating
\nOfficer has filed the final report.\n<\/p>\n
\t3.The case was committed to the court of sessions and necessary charges
\nwere framed. In order to substantiate the charges, the prosecution has marched
\n18 witnesses and relied on 25 exhibits and 6 M.Os. On completion of the evidence
\non the side of the prosecution, the accused was questioned under Section 313
\nCr.P.C as to the incriminating circumstances found in the evidence of
\nprosecution witnesses, which he flatly denied as false.  No defence witness was
\nexamined. The lower court heard the arguments advanced on either side and was of
\nthe opinion that the prosecution has proved the case beyond reasonable doubt and
\nhas found the accused\/appellant guilty as per the charge and awarded punishment
\nas referred to above, which is the subject matter of challenge before this
\nCourt.\n<\/p>\n
\t4.Advancing his arguments on behalf of the appellant, the learned counsel
\nwould submit that in the instant case, P.Ws.1 and 2 are the eyewitnesses,
\naccording to the prosecution that P.W.1 is the brother and P.W.2 is the resident
\nof the said place; that P.W.2 could not have seen the occurrence at all and his
\nevidence was planted in order to speak the facts of the prosecution case; that a
\nvery reading of the FIR would clearly reveal that the name of P.W.2 was added by
\nway of interpolation and thus, his inclusion was only an afterthought and hence,
\nhis evidence has got to be eschewed; that insofar as P.W.1 was concerned, he
\ncould not also have seen the occurrence at all; that at the time of cross
\nexamination, he has candidly admitted that he first saw his brother was actually
\nrunning with injury and thus it would be quite clear that he could not have seen
\nthe occurrence at all and under these circumstances, the evidence of both the
\neyewitnesses have got to be rejected and thus, the evidence of P.Ws.1 and 2, as
\neyewitnesses, was nothing, but planted.\n<\/p>\n
\t5.Added further the learned counsel that according to the prosecution, the
\noccurrence has taken place at about 3.00 p.m. and both P.Ws.1 and 2 have seen
\nthe occurrence and they took the deceased immediately in a car to the Hospital
\nand he was also admitted at about 3.20 p.m.; that according to P.W.8, the
\nDoctor, if the deceased would have been taken to the hospital within 15 minutes
\nafter the occurrence, he would have been saved; that further the Doctor has
\ndeposed that if the occurrence had taken place 1-1\/2 hours prior to admission,
\nthere was a chance for loss of blood; that all would go to show that they could
\nnot have seen the occurrence at all; that their evidence was planted to speak
\nthe prosecution case and thus, their evidence has got to be eschewed; that the
\nmedical opinion did not support the prosecution case; and that in the instant
\ncase, the confessional statement and the recovery of weapon of crime pursuant to
\nthe confessional statement were nothing, but a subsequent introduction in order
\nto strength the prosecution case, if possible, but in vain, since the evidence
\nin this regard has got to be rejected.\n<\/p>\n
\t6.The learned counsel further argued that even assuming the prosecution
\nhas proved the case that it was the accused, who attacked the deceased with
\naruval, the act of the accused would not attract the penal provisions of murder;
\nthat had it been the intention of the accused\/appellant to kill the deceased, he
\nwould have attacked the deceased on vital parts, but in the instant case, he has
\nattacked the deceased only in the arms and thus, it would be quite clear that he
\nhad no intention at all to kill the deceased; that in the morning hours also,
\nthere was a quarrel between the accused and the deceased and hence, the court
\nhas to look into all these circumstances of the case and hence, the act of the
\naccused would not attract the penal provisions of murder, but it would be one
\nculpable homicide not amounting to murder.\n<\/p>\n
\t7.The Court heard the learned Additional Public Prosecutor on the above
\ncontentions and has paid its anxious consideration on the submissions made.\n<\/p>\n
\t8.It is not the fact in controversy that following an incident that took
\nplace at about 3.00 p.m. on 28.01.2003 Thirumal, the husband of P.W.3 was taken
\nto the hospital, where he succumbed to the injuries.  Following the case
\nregistered by the respondent police, the Investigating Officer took up the
\ninvestigation. He conducted inquest on the dead body of the deceased in the
\npresence of the witnesses and panchayatdars and prepared inquest report.
\nFollowing the inquest, the dead body was subjected to post-mortem by P.W.10, the
\nDoctor and he has issued Ex.P.13, the post-mortem certificate, wherein he has
\nopined that the deceased would appear to have died of shock and haemorrhage due
\nto the injuries sustained and thus, the fact that the deceased died out of
\nhomicidal violence remains proved and apart from that, the same was not
\nquestioned by the appellant\/accused at any stage of proceedings and hence,
\nwithout any impediment, it could be recorded so.\n<\/p>\n
\t9.In order to substantiate the fact that it was the accused, who attacked
\nthe deceased with aruval and caused his death, the prosecution has relied on the
\nevidence of P.Ws.1 and 2.  Even after applying the test of careful scrutiny, the
\nevidence of P.Ws.1 and 2 stood the test. P.Ws.1 and 2 have clearly spoken to the
\nfact that on 28.01.2003 at about 3.00 p.m. the deceased was sleeping on the
\nparapet wall of Mutharamman temple and at that time, P.W.1 was coming from Odai
\nafter taking bath and P.W.2 was proceeding for his business and the occurrence
\nhas taken place. The contention put forth by the learned counsel for the
\nappellant that P.Ws.1 and 2 could not have seen the occurrence has got to be
\nrejected for more reasons than one.  Immediately after the occurrence, P.Ws.1
\nand 2 took the deceased to the hospital in a car driven by P.W.6 and the
\ndeceased was admitted in the hospital at about 3.20 p.m. The evidence of P.W.8,
\nthe Doctor that had the deceased been brought within 15 minutes after the
\noccurrence, he would have been saved either, or if the occurrence had taken
\nplace 1-1\/2 hours prior to admission, there was a chance for loss of blood will
\nbe of no consequence, since the evidence of both P.Ws.1 and 2 has inspired the
\nconfidence of the court.  They have clearly narrated the incident and the lower
\ncourt has marshalled their evidence properly, considered the same and has
\naccepted it and rightly too.\n<\/p>\n
\t10.The other contention is that the medical opinion did not support ocular
\ntestimony for the reason that according to P.Ws.1 and 2 after the attack with
\naruval, the accused stamped the deceased on his chest, but no corresponding
\ninjury was found. But, it has got to be taken into account that whether any
\nstamping on the chest would make corresponding injury or not will depend upon
\nthe force applied.  But, in the instant case, according to the Doctor, stamping
\non the body was not the reason for the cause of  death of the deceased, but it
\nwas due to shock and haemorrhage due to the injuries sustained and hence, this
\ncontention has got to be rejected. Now, it could be seen that the ocular
\ntestimony through P.Ws.1 and 2 remains fully corroborated by the medical
\nopinion. P.Ws.1 and 2 have categorically spoken about the act of the accused and
\nthe corresponding injury that was found in the medical opinion and thus, the
\nmedical opinion is in full corroboration with the ocular testimony.\n<\/p>\n
\t11.Yet another circumstance against the accused\/appellant is the
\nconfessional statement and the recovery of weapon of crime pursuant to the
\nconfessional statement. Necessary witness has been examined to that effect.
\nDespite cross-examination, their evidence remained unshaken and without any
\nimpediment, it has got to be accepted.  This part of the evidence as to the
\nrecovery of M.O.1, Vettu aruval, pursuant to the confessional statement would
\nclearly indicate the nexus of the accused with the crime.  In the instant case,
\nthe prosecution has got ocular testimony, which was fully corroborated by the
\nmedical opinion and also the recovery of weapon of crime, which would be
\nsufficient to sustain the findings recorded by the lower court that it was the
\naccused, who attacked the deceased and caused his death.\n<\/p>\n
\t12.The contention of the learned counsel for the appellant that the act of
\nthe accused would not attract the penal provisions of murder has got to be
\nrejected.  In the instant case, at the time of occurrence, there was no quarrel
\nbetween the accused and the deceased.  In the instant case, from the available
\nevidence, it would be quite clear that the accused was an arrack seller; that a
\npetition was given to the District Collector, Nagercoil by all the villagers,
\nincluding P.W.3. If at all the accused had any grievance, it should be against
\nP.W.3 and not the deceased, who is the husband of P.W.3.  On the date of
\noccurrence, in the morning, the deceased advised the accused to obey the rules
\nof the village and he has not mentioned anything more. At no stretch of
\nimagination, such an advice would provoke a person. The occurrence has taken
\nplace at about 3.00 p.m., when the deceased was sleeping in a parapet wall of
\nMutharamman temple. At that time, the accused armed with vettu aruval, went over
\nthere, cut him and caused his death. Thus, the act of the accused was an
\nintentional one. The act of the accused would attract the penal provisions of
\nmurder. The narration of the incident would indicate the act of the accused that
\nwith an intention to cause death of the deceased, the accused has attacked the
\ndeceased and caused his death. Hence, the lower court was perfectly correct in
\nfinding the accused guilty under Section 302 IPC and sentencing him to undergo
\nlife imprisonment along with a fine and default sentence.\n<\/p>\n
\t13.In the result, the criminal appeal must fail and fails.  Accordingly,
\nthe criminal appeal is dismissed.\n<\/p>\n
Index : Yes
\nInternet : Yes
\nvvk<\/p>\n
To<\/p>\n
1.The Sessions Judge,
\n  Kanyakumari Division,
\n  Nagercoil.\n<\/p>\n
2.The Inspector of Police,
\n  Rajakkamangalam Police Station,
\n  Kanyakumari 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 Thavasi vs State Rep. By on 12 March, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12\/03\/2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRIMINAL APPEAL NO.355 OF 2005 Thavasi .. Appellant Vs. State rep. by the Inspector of Police, Rajakkamangalam Police Station, Kanyakumari District Crime […]<\/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-162674","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThavasi vs State Rep. 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