{"id":174430,"date":"2010-07-26T00:00:00","date_gmt":"2010-07-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jothilingam-vs-state-of-tamil-nadu-on-26-july-2010"},"modified":"2015-03-11T09:33:56","modified_gmt":"2015-03-11T04:03:56","slug":"jothilingam-vs-state-of-tamil-nadu-on-26-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jothilingam-vs-state-of-tamil-nadu-on-26-july-2010","title":{"rendered":"Jothilingam vs State Of Tamil Nadu on 26 July, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Jothilingam vs State Of Tamil Nadu on 26 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 26\/07\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE M.DURAISWAMY\n\nCrl.A.(MD) No.97 of 2010\n\nJothilingam\t\t\t\t\t\t\t..  Appellant\n\nVs\n\nState of Tamil Nadu, Through\nThe Inspector of Police,\nAralvaimozhy Post,\nKanyakumari District.\n(Crime No.60\/2005)\t\t\t\t\t\t.. Respondent\n\n\n\tThis criminal appeal has been preferred under Section 374(2) of  Cr.P.C.\nagainst the conviction and sentence of life imprisonment with fine and default\nsentence for the offence under Section 302 I.P.C. and one month Simple\nImprisonment for the offence under Section 341 I.P.C. and two years Rigorous\nImprisonment for the offence under Section 506(i) I.P.C., imposed on the\nappellant\/accused by the learned Sessions Judge, Kanyakumari Division @\nNagercoil, made in S.C.No.18 of 2006, dated 25.01.2010.\n\n!For Appellant  ... Mr.Murugappan\n\t\t    for Mr.C.Raja Kumar\n^For Respondent ... Mr.P.N.Pandi Durai\n\t\t    Additional Public Prosecutor\n\n:JUDGMENT\n<\/pre>\n
(The judgment of the court was made by M.CHOCKALINGAM, J.)<\/p>\n
\tChallenge is made to a Judgment of the Court of Sessions Division,
\nKanyakumari at Nagercoil, made in S.C.No.18 of 2006, dated 25.01.2010, whereby
\nthe appellant\/accused stood charged under Sections 341, 302 and 506(ii) I.P.C.,
\ntried and found guilty under Section 302 I.P.C. and awarded life imprisonment
\nalong with fine and default sentence and found guilty under Section 341 I.P.C.
\nand awarded one month Simple Imprisonment and also found guilty under Section
\n506(i) I.P.C. and awarded two years Rigorous Imprisonment.\n<\/p>\n
\t2.The short facts necessary for the disposal of the prosecution case can
\nbe stated as follows:-\n<\/p>\n
\ta) The deceased was employed in the brick kiln of P.W.7 as a Supervisor.
\nThe accused was also working in the same brick kiln and the deceased was to give
\nRs.1,500\/- to the accused\/appellant towards salary. For the past several months,
\nso many demands were made by the accused\/appellant. The deceased was go on
\ngiving evasive answers. On the date of occurrence, i.e., on 27.02.2005, at about
\n2.00 p.m., when the deceased was in the house of his father-in-law, the accused
\nwent over there and made a demand and this was found to be shameful to the
\ndeceased.  Thereafter, the deceased refused to pay the said amount and the
\naccused\/appellant made a challenge and went outside.\n<\/p>\n
\tb) On 17.02.2005, at 8.00 p.m., when P.W.1, the brother of the deceased
\naccompanied him and both of them were walking on the northern side of the
\nThovalai Channel situated on the south side of the Brick chamber, the
\naccused\/appellant came there and demanded the dues.  The deceased refused to
\nmake the payment. Immediately, the accused took a Vettaruval hidden inside his
\nshirt and attacked the deceased on the right side of the neck, and the deceased
\nfell down.  Then, not satisfied, the accused kicked him and pushed him in the
\nnearby channel.  Then, P.W.1 raised alarm, and the accused threatened to kill
\nP.W.1 and when P.W.1 was running, he was chased by him with the weapon.
\nThereafter, the accused fled away from the place of occurrence.  Subsequently,
\nP.W.1 returned to the scene of occurrence along with others and found his
\nbrother dead.\n<\/p>\n
\tc) Then, P.W.1 proceeded to the respondent police station, where P.W.12,
\nthe Head Constable was on duty. P.W.12 recorded the statement of P.W.1 as
\nEx.P.1. On the strength of the complaint Ex.P.1, a case came to be registered in
\nCrime No.60 of 2005 under Sections 341 and 302 IPC and the express First
\nInformation Report, Ex.P10 was despatched to the Court.\n<\/p>\n
\td) On receipt of the copy of the F.I.R., P.W.14, Inspector of Police of
\nthe Circle, took up investigation, proceeded to the place of occurrence, made an
\ninspection in the presence of two witnesses and prepared Ex.P.2, the observation
\nmahazar and also Ex.P.11, the rough sketch and also recovered M.Os.5 and 6,
\nbloodstained earth and sample earth respectively, from the place of occurrence
\nunder a cover of Mahazar Ex.P.3. Then, he examined the witnesses and recorded
\ntheir statements. He conducted inquest on the dead body of the deceased in the
\npresence of the witnesses and panchayatdars and prepared Ex.P.12, the inquest
\nreport.\n<\/p>\n
\te) Then, the dead body of the deceased was sent to the hospital, for the
\npurpose of autopsy. P.W.10, the Doctor, attached to Kanniyakumari Government
\nMedical College Hospital, on receipt of the requisition, has conducted autopsy
\non the dead body of the deceased and issued Ex.P.8, the post-mortem certificate,
\nwherein he has narrated the injuries and has opined that the deceased would
\nappear to have died of shock and haemorrhage due to cut injuries in the neck.\n<\/p>\n
\tf) Pending investigation, on 19.02.2005 at 12.00 hours, the Investigator
\narrested the accused in the presence of the witnesses and he gave a confessional
\nstatement voluntarily and the same was recorded. The admissible part of the
\nconfessional statement was marked as Ex.P.13, and he also produced M.O.1,
\nbloodstained Vettaruval, and the same were recovered under a cover of mahazar
\nEx.P.14. Then, the accused was sent for judicial remand.\n<\/p>\n
\tg) The material objects recovered from the place of occurrence, from the
\ndead body of the deceased and from the accused were subjected to chemical
\nanalysis by the forensic department on a requisition made by the Investigating
\nOfficer through the concerned Judicial Magistrate. Following the same, the
\nChemical analyst’s report, Ex.P14 and Serologist’s report Ex.P17 were received
\nby the Court.\n<\/p>\n
\th) On completion of the investigation, the Investigating Officer has filed
\nthe final report before the concerned court, which in turn has committed the
\ncase to the court of sessions and necessary charges were framed and the case was
\ntaken up for trial.\n<\/p>\n
\ti) In order to substantiate the charges, at the time of trial, the
\nprosecution examined 14 witnesses and relied on 17 exhibits and 7 material
\nobjects. On completion of the evidence on the side of the prosecution, the
\naccused was questioned under Section 313 Cr.P.C. as to the incriminating
\ncircumstances found in the evidence of prosecution witnesses. He denied them as
\nfalse. Neither defence witness was examined nor defence document was marked.\n<\/p>\n
\tj) After hearing the arguments of the learned counsel and looking into the
\nmaterials available, the trial Court took the view that the prosecution has
\nproved the case of murder and found the accused guilty and awarded sentence as
\nreferred to above. Under such circumstances, this criminal appeal has arisen
\nbefore this court at the instance of the accused\/appellant.\n<\/p>\n
\t3.Advancing arguments on behalf of the appellant, the learned counsel
\nMr.Murugappan made the following submissions:\n<\/p>\n
\t(a) According to the prosecution, the occurrence has taken place at 8.00
\np.m., on 17.02.2005. P.W.1 is the only eyewitness. The evidence of P.W.1 should
\nhave been discarded, since he is not only an interested witness as brother of
\nthe deceased, but also he could have not seen the occurrence at all.  The
\noccurrence has taken place at about 8.00 p.m. and that too in utter darkness.
\nEven in the observation mahazar or in the rough sketch, there is no mention
\nabout any light or moon light, but through the evidence of P.W.1 it was
\ndeveloped that he witnessed the occurrence in the moon light. Apart from that,
\naccording to the F.I.R., P.W.1 and the deceased were coming from the mango
\ngrove, but, according to the evidence of P.W.1, they were going into the mango
\ngrove. Thus, in view of the above, he could not have accompanied the deceased at
\nthe time of occurrence.\n<\/p>\n
\t(b) Added further the learned counsel that according to P.W.1, there were
\nthree cut injuries inflicted upon and no more further injuries were caused to
\nthe deceased, but, according to P.W.2, one more injury was found in the
\nshoulder.\n<\/p>\n
\t(c) Even according to P.W.1, the accused was coming from  West to East in
\nthe opposite direction and P.W.1 and the deceased were proceeding from East to
\nWest and thus it would be quite clear that the deceased and the accused would
\nhave come face to face with each other, and if actually he had given cuts as put
\nforth by P.W.1, all the three cut injuries would have been caused on the left
\nside of the deceased. Contrarily, the postmortem certificate would indicate that
\nall the three injures were found on the the right side of the deceased and thus,
\nthose injuries could not have been caused as put forth by P.W.1.  Also P.W.1
\ncould not be taken as witness to the occurrence.\n<\/p>\n
\t(d) Added further the learned counsel that the alleged confession and
\nrecovery of M.O.1 was nothing but a cooked up affair and introduced in order to
\nshape the prosecution case.  Thus, the evidence on record would clearly indicate
\nthat prosecution has miserably failed to prove its case.\n<\/p>\n
\t(e) Added further, the learned counsel that in the instant case, even if
\nthe Court takes a view that the prosecution has proved the factual matrix, that
\nit was the accused\/appellant, who attacked the deceased and caused his death,
\nthe act of the accused would not attract the penal provision of murder.
\nAdmittedly, the appellant was employed in P.W.7’s brick kiln and the deceased
\nwas working as Supervisor, and there was a due of Rs.1,500\/- towards the salary,
\nand the accused was demanding the same for a long time.  Despite repeated
\ndemands, the same was not paid. Under such circumstances, even the answer given
\nby the deceased refusing to make payment at the time of occurrence, provoked the
\naccused\/appellant.  A coolie,  who could not get the salary for a long time,
\nbut, get an answer of refusal of payment, was provoked by the same and he
\nattacked the deceased due to the sudden provocation due to non payment of
\nsalary. Under such circumstances, it comes under one of the exceptions to
\nSection 300 I.P.C., and this has got to be considered.\n<\/p>\n
\t4.The court heard the learned Additional Public Prosecutor on the above
\ncontentions and paid its anxious consideration on the submissions made, and also
\nscrutinized the materials available.\n<\/p>\n
\t5.It is not in controversy that the brother of P.W.1 was done to death in
\nan incident that took place at 8.00 p.m. on 17.02.2005. Following the inquest
\nconducted by the Investigator, the dead body was subjected to postmortem.  The
\npostmortem doctor has categorically opined as a witness before the Court and
\nalso through the contents of the postmortem certificate that Thangakrishnan died
\nout of shock and haemorrhage. This fact was never disputed by the appellant
\nbefore the trial Court.  Hence, this Court has no impediment in recording so.\n<\/p>\n
\t6.In order to substantiate that it was the accused\/appellant who caused
\nthe death of the deceased, the prosecution had only one eyewitness, who was
\nprojected as P.W.1.  It is true that P.W.1 is the brother of the deceased.  But,
\nmerely on the ground of relationship, his evidence cannot be discarded.
\nAccording to the settled principle of law, the Court before accepting the
\nevidence, must apply the test of careful scrutiny.  Even after the application
\nof the test, this court is satisfied that the evidence of P.W.1 has got to be
\naccepted.  According to him, on the date of occurrence, when he along with his
\nbrother were going through the northern side of the Thovalai Channel on the
\nsouthern side of the Brick Kiln of P.W.7, the accused came over there and
\ndemanded for salary. When the deceased refused to pay the same, the accused cut
\nhim thrice, as a result of which he fell down, and immediately not satisfied
\nwith the act, the accused actually kicked and pushed him into the channel, which
\nis evident from the evidence of P.W.1. The evidence of P.W.1 remained unshaken,
\ndespite cross examination in full and apart from that the ocular testimony which
\nwas projected through P.W.1 stood fully corroborated by the medical evidence,
\nwhich was projected through the postmortem doctor and the postmortem
\ncertificate.\n<\/p>\n
\t7.There were three cut injuries found on the neck of the deceased. Now,
\nthe contention put forth by the learned counsel for the appellant is that the
\ninjuries were actually found on the right side of the deceased and if the
\ndeceased was actually standing in front of the accused\/appellant and one was
\nfacing the other, the injuries should have been caused on the left side of the
\ndeceased cannot be countenanced for the simple reason that if the accused was
\nfacing the right side of the neck of the deceased, quite naturally those
\ninjuries could have been caused.\n<\/p>\n
\t8.Added further, yet another circumstance was the recovery of M.O.1,
\npursuant to the confessional statement made. A witness has been examined to that
\neffect, and thus the factum of arrest, confessional statement and recovery
\nremained proved. It would be quite indicative of the fact that because of the
\nnon payment of the salary, it was the accused\/appellant, who attacked the
\ndeceased at the time of occurrence and caused his death instantaneously.  Hence,
\nit leaves no reasonable doubt in the mind of the Court.\n<\/p>\n
\t9.Insofar as the second line of arguments is concerned, the Court is able
\nto find force in the contentions put forth by the learned counsel.  Admittedly,
\nthis appellant\/accused was employed as a coolie in the brick chamber of P.W.7
\nand during the relevant time, the deceased was working as a supervisor, and a
\nsum of Rs.1,500\/- towards salary was retained by the deceased and not paid to
\nthe appellant\/accused.  Despite repeated demands, the deceased did not pay the
\namount to him.  At the time of occurrence, when there was a demand made by him,
\nthere was a flat refusal for making payment.  Thus, naturally a coolie like the
\naccused would get provoked.  At the same time, when there was a refusal to pay
\nthe wages, the accused got provoked and attacked him. Under such circumstances,
\nit cannot be said that the accused attacked him with intention or premeditation,
\nbut, due to sudden provocation. Hence, it cannot fall under the definition of
\nmurder, and therefore, the act of the accused would attract the penal provision
\nof Section 304 (Part I) I.P.C. and awarding a punishment of seven years rigorous
\nimprisonment would meet the ends of justice.\n<\/p>\n
\t10.Accordingly, the conviction and the sentence of life imprisonment
\nimposed by the trial Court on the accused\/appellant under Section 302 I.P.C. are
\nset aside, and instead, he is convicted under Section 304 (Part I) I.P.C. and he
\nis directed to suffer seven years Rigorous Imprisonment. However, the conviction
\nand the sentence imposed by the trial Court on the accused\/appellant under
\nSections 341 and 506(i) I.P.C. are confirmed.  The imprisonment already
\nundergone by
\nthe accused\/appellant shall be given set off. The sentences imposed are to run
\nconcurrently as recorded by the trial Court. The fine amount imposed by the
\nTrial Court under Section 302 I.P.C. is ordered to be treated as one imposed
\nunder Section 304 (Part I) I.P.C.\n<\/p>\n
\t11.In the result, this appeal is accordingly disposed of.\n<\/p>\n
sj\/jikr\t<\/p>\n
To<\/p>\n
1.The Sessions Judge,
\n  Kanyakumari Division,
\n  Nagercoil.\n<\/p>\n
2.The Inspector of Police,
\n  Aralvaimozhy Post,
\n  Kanyakumari District.\n<\/p>\n
3.The Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Jothilingam vs State Of Tamil Nadu on 26 July, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26\/07\/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY Crl.A.(MD) No.97 of 2010 Jothilingam .. Appellant Vs State of Tamil Nadu, Through The Inspector of Police, Aralvaimozhy Post, 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-174430","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nJothilingam vs State Of Tamil Nadu on 26 July, 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\/jothilingam-vs-state-of-tamil-nadu-on-26-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jothilingam vs State Of Tamil Nadu on 26 July, 2010 - 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