{"id":18213,"date":"2007-04-12T00:00:00","date_gmt":"2007-04-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-muthukumar-vs-state-rep-by-on-12-april-2007"},"modified":"2014-03-12T19:19:21","modified_gmt":"2014-03-12T13:49:21","slug":"m-muthukumar-vs-state-rep-by-on-12-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-muthukumar-vs-state-rep-by-on-12-april-2007","title":{"rendered":"M.Muthukumar vs State Rep. By on 12 April, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Muthukumar vs State Rep. By on 12 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 12\/04\/2007\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\nCRIMINAL APPEAL(MD)NO.109 OF 2005\n\n\nM.Muthukumar\t\t\t..  Appellant\n\n\tVs.\n\nState rep. by\nThe Inspector of Police,\nSivagangai Taluk Police Station,\nCrime No.159 of 2002\t\t..  Respondent\n\n\n\tThis criminal appeal is preferred under Section 374 Cr.P.C against the\njudgment of the learned District and Sessions Judge, Sivagangai made in\nS.C.No.133 of 2003, dated 25.11.2004.\n\n!For Appellant  \t..\t  Mr.K.Jegannathan\n\t\t   \t..\t  Amicus Curiae\n\n^For Respondent \t..\t  Mr.Daniel Manoharan, 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 learned Sessions Judge, Sivaganga made in
\nS.C.No.133 of 2003, this appeal has been brought forth by the first accused, who
\nalong with the other accused ranked as A-2 stood charged as follows:
\n\tA-1\t\t– Sections 294(b), 341, 307 and 302 IPC
\n\tA-2\t\t– Sections 341,307 r\/w 34 and 302 r\/w 34 IPC
\nOn trial, A-1 was found guilty under Sections 324 and 302 IPC and was sentenced
\nto undergo 2 years RI and to pay a fine of Rs.2000\/-, in default to undergo 6
\nmonths SI under Sections 324 IPC and life imprisonment and to pay a fine of
\nRs.3000\/-, in default to undergo one year SI under Section 302 IPC, while A-2
\nwas acquitted of the charges levelled against her.\n<\/p>\n
\t2.The short facts necessary for the disposal of this appeal can be stated
\nthus:\n<\/p>\n
\ta)The second accused is the wife of one Thangasamy, originally shown as
\naccused and died.  The first accused is the son-in-law of the said Thangasamy.
\nThangasamy and his wife had no issues.  Then, they took one Sudha on adoption
\nand she was given in marriage to the first accused 4 years prior to the
\noccurrence. P.W.1 is the younger brother of the said Thangasamy.  P.W.4 is an
\nanother brother of Thangasamy. The said Thangasamy had other brothers also.
\nP.W.2 is the son of P.W.1. The deceased Thamayanthi is the wife of P.W.1.  They
\nwere residing at Nedungulam village.  The family members of P.W.1 were aggrieved
\nover the adoption of Sudha by Thangasamy.  The family members of P.W.1 were
\nunder impression that a child from their family would have been adopted. So
\nthat, the joint family properties would come to their hand.  Hence, they were
\naggrieved over the same. The family members of the accused were under impression
\nthat Thamayanthi, the wife of P.W.1, was responsible for the same.\n<\/p>\n
\tb)10 days prior to the occurrence, the accused Thangasamy beat
\nThamayandhi.  But, P.W.1 and Thamayanthi did not approach police or anybody in
\nthat regard. While the matter stood thus, on 19.7.2002 at about 8.45 p.m., when
\nP.W.1, P.W.2 and P.W.4 were all sitting in front of the house and chatting, the
\naccused, who were residing in the opposite house, rushed over there. They were
\nuttering abused language. It was questioned by P.W.2. Immediately, the first
\naccused, who was having knife in hand, attacked P.W.2 on flank.  On seeing this,
\nthe wife of P.W.1 rushed over and immediately, the first accused stabbed her on
\nher chest. At the time of occurrence, the other two accused restrained the P.Ws.
\nand facilitated the crime. The accused fled away from the place of occurrence.
\nThe occurrence was witnessed by P.Ws.1 and 3.\n<\/p>\n
\tc)Immediately, they arranged the car and took Thamayanthi and P.W.2 to the
\nGovernment Hospital, Sivagangai.  P.W.7, the Doctor, who was on duty at that
\ntime, declared Thamayanthi dead and he has issued Ex.P.6, the accident register
\nin this regard. P.W.7, the same Doctor has given treatment to P.W.2 and has
\nissued Ex.P.8, the accident register.\n<\/p>\n
\td)P.W.1 rushed over to Sivaganga Taluk Police Station, where P.W.10, the
\nSub Inspector of Police was on duty at that time. Ex.P.1, the complaint was
\ngiven by P.W.1 to P.W.10, on the strength of which, a case came to be registered
\nin Crime No.159 of 2002. Ex.P.11, the FIR was despatched to the Court.\n<\/p>\n
\te)P.W.11, the Inspector of Police, on receipt of the copy of the FIR, took
\nup the investigation, proceeded to the spot and made an inspection in the
\npresence of the witnesses.  He has prepared Ex.P.2, the observation mahazar and
\nEx.P.12, the rough sketch. He has also recovered the material objects from the
\nplace of occurrence under a cover of mahazar. Following the same, he went to the
\nGovernment Hospital, Sivaganga and conducted inquest on the dead body of the
\ndeceased in the presence of the witnesses and panchayatdars and prepared
\nEx.P.13, the inquest report. He sent the dead body to the hospital for the
\npurpose of autopsy along with the requisition.\n<\/p>\n
\tf)P.W.8, the Doctor, attached to the Government Hospital, Sivaganga, on
\nreceipt of the requisition, has conducted autopsy on the dead body of the
\ndeceased.  He has issued Ex.P.10, 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.\n<\/p>\n
\tg)Pending investigation, P.W.11 arrested the accused on 22.7.2002. A-1
\nvoluntarily came forward to give a confessional statement, which was recorded in
\nthe presence of the witnesses, the admissible part of which was marked as
\nEx.P.4. Pursuant to the confessional statement, A-1 produced M.O.1, knife, which
\nwas recovered under a cover of Ex.P.5, mahazar. All the material objects
\nrecovered from the place of occurrence, from the dead body of the deceased and
\nM.O.1, knife recovered from A-1 were subjected to chemical analysis by the
\nForensic Sciences Department, which resulted in two reports, namely Ex.P.16, the
\nChemical Analyst’s report and Ex.P.17, the Serologist’s report. On completion of
\nthe investigation, the Investigating Officer has filed the final report.\n<\/p>\n
\t3.The case was committed to the court of sessions and necessary charges
\nwere framed. One of the accused Thangasamy died even before the commencement of
\ntrial and under these circumstances, the case was proceeded against the other
\ntwo accused.  In order to substantiate the charges levelled against the accused,
\nthe prosecution examined 11 witnesses and relied on 17 exhibits and 8 M.Os. On
\ncompletion of the evidence on the side of the prosecution, the accused were
\nquestioned under Section 313 Cr.P.C. as to the incriminating circumstances found
\nin the evidence of prosecution witnesses, which they flatly denied as false. No
\ndefence witness was examined. The trial court heard the arguments advanced on
\neither side, scrutinised the materials available and took the view that the
\nprosecution has proved the case so far as A-1 is concerned in respect of the
\ncharges as stated above and awarded imprisonment as referred to above and it has
\nacquitted A-2 of all the charges levelled against her. Hence, this appeal has
\nbeen brought forth by the first accused.\n<\/p>\n
\t4.Advancing his arguments on behalf of the appellant, the learned counsel
\nwould submit that in the instant case, the prosecution has not proved the case
\nbeyond reasonable doubt; that there are three eyewitnesses examined, out of whom
\none was injured witness; that though P.Ws.1 and 3 have  claimed to be the
\neyewitnesses, their evidence, if carefully scrutinised, would indicate that they
\nare not only interested, but also have given false evidence; that there are
\nvital discrepancies in the evidence of all the three eyewitnesses; that the
\nmedical evidence adduced by the prosecution did not corroborate with the ocular
\ntestimony; that so far as A-1 is concerned, there was a specific accusation that
\nit was he, who stabbed the deceased, after attacking P.W.2, but the evidence
\nproduced by the prosecution is not reliable; that the prosecution had produced
\nevidence in respect of the alleged arrest, confessional statement and recovery;
\nthat the witness examined in this regard also has not spoken the truth and the
\nevidence was shaky at the time of cross examination; that all put together would
\nindicate that the prosecution has not proved the case beyond reasonable doubt;
\nthat the trial court was not prepared to accept the case of prosecution in
\nrespect of the second accused, but was prepared to accept the evidence of same
\nwitness in order to hold the first accused guilty of the charges and that the
\njudgment of the lower court is erroneous and hence, it has got to be set aside.\n<\/p>\n
\t5.Added further the learned counsel that even assuming that the
\nprosecution has proved the case that it was the first accused, who stabbed the
\ndeceased and caused her death, the act of A-1 would not attract the penal
\nprovisions of murder; that even as per the case of prosecution, the witnesses
\nwere chatting in front of the house and at that time, the accused persons were
\ncoming from their house and used abusive language; that in a heat exchange of
\nwords and in the wordy dual, A-1 has acted so; that even as per the case of
\nprosecution, when the accused No.1 attacked P.W.2, it was the deceased, who
\nintervened and thereby, she sustained injuries and under these circumstances,
\nthe act of the accused No.1 would not attract the penal provisions of murder,
\nbut it would be one culpable homicide not amounting to murder and that it has
\ngot to be considered by this Court.  In support of his contentions, the learned
\ncounsel has relied on the following two decisions:\n<\/p>\n
\t(1)2006(3) CRIMES 46(SC) – BUNNILAL CHAUDHARY VS. SATATE OF BIHAR.
\n\t(2)1984 L.W.(CRL.)23 (SUGUMARAN ALIAS ELI, IN RE)\n<\/p>\n
\t6.Heard the learned Additional Public Prosecutor on the above contentions.
\nThis Court has paid its anxious consideration on the submissions made.\n<\/p>\n
\t7.It is not the fact in controversy that Thamayanthi, the wife of P.W.1
\nwas done to death in an occurrence that took place at about 8.45 p.m. on
\n19.7.2002 at the place as put forth by the prosecution.  After the inquest was
\nover by the Investigating Officer, the dead body was subjected to post-mortem by
\nP.W.8, the Doctor. He has categorically opined not only in Ex.P.10, the post-
\nmortem certificate, but also in his evidence before the court that the deceased
\nwould appear to have died of shock and haemorrhage due to the injuries
\nsustained. The fact that the deceased died out of homicidal violence was never
\nquestioned by the appellant at any stage of proceedings. Hence, it has got to be
\nfactually recorded so.\n<\/p>\n
\t8.In order to substantiate the case of prosecution that at the time of
\noccurrence, A-1 attacked P.W.2 with knife and also stabbed the deceased on her
\nchest and caused her death, the prosecution rested its case through direct
\nevidence, by marching three eyewitnesses, namely P.Ws.1 to 3. Fortunate for the
\nprosecution, out of three eyewitnesses, P.W.2 was an injured witness.
\nImmediately after the occurrence, he was taken to the hospital along with
\nThamayanthi.  He was given treatment by P.W.7, the Doctor. Ex.P.8 was the
\naccident register in his regard. A scrutiny of Ex.P.8 would indicate that an
\noccurrence has taken place, in which known persons attacked with knife.  Apart
\nfrom the evidence of P.W.2, the prosecution had to its benefit the evidence of
\nP.Ws.1 and 3. They have spoken in one voice about the act of the accused.  The
\nmedical evidence produced by the prosecution stood in corroboration with the
\nocular testimony.\n<\/p>\n
\t9.Yet another circumstance against the accused is the recovery of M.O.1,
\nknife, pursuant to the confessional statement made by A-1. In view of the
\nsufficiency of evidence, as narrated above, the contention of the learned
\ncounsel for the appellant, questioning the case of prosecution in respect of the
\nact of the accused, has got to be rejected for the reason that it was the
\naccused No.1, who attacked not only P.W.2 with knife and caused injury, but also
\nstabbed the deceased and caused her death.\n<\/p>\n
\t10.Coming to the second line of argument of the learned counsel for the
\nappellant that it was he, who stabbed the deceased and caused her death, the act
\nof A-1 would not attract the penal provisions of murder, the Court is able to
\nsee sufficient force in the contention. Even as per the prosecution case, at the
\ntime of occurrence, all the members of the family of P.W.1 were sitting and
\nchatting in front of the house. At that time, the accused came there from their
\nhouse situated in the opposite direction.  The accused used abusive language and
\nit was questioned by P.Ws. Then, there was a wordy dual.  In that, the accused
\nNo.1, having knife in hand, attacked P.W.2 at first and at that time, it was the
\ndeceased, who intervened and thus, he attacked her also.  At the time of attack,
\nhe has caused only one stab injury on her and that has caused her death.  The
\ncircumstance would indicate that A-1 would not have acted with an intention or
\npre-meditation, but it was due to wordy dual between P.Ws. and the accused, he
\nhas acted so. When there was a wordy dual and when the deceased intervened, in
\nthat process, the accused has attacked her. At the same time, there is nothing
\nto show that there was any intention to cause death or he has acted with an
\nintention to cause injuries, which are sufficient in the ordinary course of
\nnature to cause death.  The first accused has acted in a sudden quarrel and
\nwordy dual and under these circumstances, the act of the accused would not
\nattract the penal provisions of murder, but it would attract the penal
\nprovisions of Section 304(I) IPC and awarding punishment of 7 years RI would
\nmeet the ends of justice.\n<\/p>\n
\t11.Accordingly, the judgment of the lower court finding the accused No.1
\nguilty under Section 302 IPC and sentencing him to undergo life imprisonment is
\nmodified to one under Section 304(I) IPC and is sentenced to undergo 7 years RI.
\nThe period of sentence already undergone by him is ordered to be given set off.
\nThe fine amount imposed by the lower court under Section 302 IPC shall be
\ntreated as fine amount imposed under Section 304(I) IPC. In other respects, the
\njudgment of the lower court is confirmed.\n<\/p>\n
\t12.With the above modification in conviction and sentence, this criminal
\nappeal is dismissed.\n<\/p>\n
\t13.Mr.K.Jegannathan, Advocate is entitled to get remuneration from the
\nLegal Aid, Madurai.\n<\/p>\n
vvk<\/p>\n
To\n<\/p>\n
1.The Sessions Judge,
\n  Sivagangai.\n<\/p>\n
2.The Inspector of Police,
\n  Sivagangai Taluk Police Station.\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 M.Muthukumar vs State Rep. By on 12 April, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12\/04\/2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRIMINAL APPEAL(MD)NO.109 OF 2005 M.Muthukumar .. Appellant Vs. State rep. by The Inspector of Police, Sivagangai Taluk Police Station, Crime No.159 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-18213","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Muthukumar vs State Rep. 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