{"id":198727,"date":"2008-01-09T00:00:00","date_gmt":"2008-01-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/moni-alias-dhanasekharan-vs-state-of-tamil-nadu-on-9-january-2008"},"modified":"2019-02-20T05:50:53","modified_gmt":"2019-02-20T00:20:53","slug":"moni-alias-dhanasekharan-vs-state-of-tamil-nadu-on-9-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/moni-alias-dhanasekharan-vs-state-of-tamil-nadu-on-9-january-2008","title":{"rendered":"Moni Alias Dhanasekharan vs State Of Tamil Nadu on 9 January, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Moni Alias Dhanasekharan vs State Of Tamil Nadu on 9 January, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 09\/01\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE S.PALANIVELU\n\nCRIMINAL APPEAL NO.61 OF 2006\n\n\n\nMoni alias Dhanasekharan\t\t\t..  Appellant\n\n\nVs.\n\n\nState of Tamil Nadu,\nthrough the Inspector of Police,\nThuckalay,\nKanyakumari District\n(Crime No.662 of 2003)\t\t\t\t..  Respondent\n\n\n\tThis criminal appeal has been preferred under Section 374(2) Cr.P.C.\nagainst the judgment of the learned Sessions Judge, Kanyakumari Division at\nNagercoil made in S.C.No.19 of 2004, dated 2.11.2004.\n\n!For Appellant  \t\t...  Mr.G.Arumugaperumal\n\n^For Respondent \t\t...  Mr.C.Daniel Manoharan, APP\n\n\n\n\n\n:JUDGMENT\n<\/pre>\n
(The judgment of the court was made by M.CHOCKALINGAM, J.)<\/p>\n
\tThe sole accused\/appellant herein, who stood charged, tried and found
\nguilty under Section 302 IPC and awarded with life imprisonment along with a
\nfine of Rs.100\/- in default to undergo one month RI, has brought forth this
\nappeal before this court.\n<\/p>\n
\t2.The short facts necessary for the disposal of this appeal could be
\nstated as follows:\n<\/p>\n
\ta)P.W.2, the resident of Oviyampalayam, was having four lorries in his
\ncompany, named Sreemurugan Lorry Service. The deceased was the driver in respect
\nof one of his lorries, bearing registration No.KA-01\/C 6769. The accused was
\nworking as Cleaner along with the deceased. 10 days prior to the occurrence,
\nwhen the lorry was proceeding from Maharashtra after loading Marbles, the
\naccused took Rs.10,000\/- from the lorry and  absconded. The deceased informed
\nthe same to the owner, P.W.2 and also caught him. Out of Rs.10,000\/-, the
\naccused spent Rs.300\/-. All of them returned back.\n<\/p>\n
\tb)P.W.15, who was working as Painter in the workshop of one Joyan in
\nMarthandam-Kulasekaram road, knew both the accused and the deceased. On
\n18.08.2003 at about 5.30 p.m., when he was in front of the tea shop, the lorry
\ndriven by the deceased was stopped and the Cleaner\/accused was unscrewing the
\ntyre. When there was some delay caused, immediately, the deceased kicked and
\nasked him to do the job early. By that act, the deceased caused simple injury on
\nthe accused. P.W.15 shouted at the deceased.\n<\/p>\n
\tc)After coming back, the lorry was taken to Arumanai on 28.08.2003 for
\nloading Rubber from the shop of P.W.5. P.W.6 was the load man employed for that
\npurpose. Actually, the loading work took place between 10.00 p.m. on 28.08.2003
\nand 12.00 midnight. After it was being loaded, the lorry was taken to the shop
\nof one Rajan for loading certain goods.  After loading was over, the goods were
\nbeing tied. Again, the deceased was shouting at the accused to do the work
\nearly. The accused was telling that he was not prepared to board the lorry,
\nsince he was often being abused and assaulted by the driver, namely the
\ndeceased.\n<\/p>\n
\td)At about 2.45 a.m. on 29.08.2003, when P.W.9, the petty shop owner, was
\nin his shop, the accused came and asked for cigarette that it was wanted by the
\ndriver and hence, the same was sold. when P.W.8, who was the bakery shop owner,
\nwas in his shop at 3.00 a.m. on 29.08.2003, he found both the accused and the
\ndeceased in the lorry, which was stopped nearby. In the early hours, P.W.1, who
\nwas an another driver, running his lorry on the highway, on seeing that the
\nlorry, of which the deceased was the driver, was found stopped, immediately got
\ndown from his lorry and went near the lorry of the deceased and found the dead
\nbody of the deceased. Immediately, he informed the same to P.W.2, pursuant to
\nwhich, a complaint was given under Ex.P.1 to P.W.17, the Sub Inspector of Police
\nof Thucklay Police Station on 29.08.2003. On the strength of the same, a case
\ncame to be registered in Crime No.662 of 2003 under Section 302 IPC Ex.P.13, the
\nFIR was despatched to the court.\n<\/p>\n
\te)On receipt of the copy of the F.I.R., the case was taken up for
\ninvestigation by P.W.18, the Inspector of Police, who made an inspection of the
\nscene of occurrence and prepared Ex.P.2, the observation mahazar and Ex.P.14,
\nthe rough sketch.  He recovered the material objects from the place of
\noccurrence under a cover of mahazar in the presence of the witnesses. Then, he
\nconducted inquest on the dead body of the deceased in the presence of the
\nwitnesses and panchayatdars and prepared Ex.P.15, the inquest report. The entire
\nplace of occurrence and the dead body were photographed by P.W.14, the
\nPhotographer.  Ex.P.11 (series) were the photos and Ex.P.12 (series) were the
\nnegatives.\n<\/p>\n
\tf)The dead body was subjected to post-mortem by P.W.12, the Doctor,
\nattached to the Government Hospital, Thuckalay, on receipt of the requisition
\nfor conducting post-mortem. After conducting post-mortem, he gave Ex.P.6, the
\npost-mortem certificate, wherein he found 12 external injuries and has opined
\nthat the deceased would appear to have died of shock and haemorrhage due to the
\ninjuries sustained.\n<\/p>\n
\tg)Pending investigation, P.W.18, the Investigating Officer arrested the
\naccused on 4.9.2003 at about 6.30  p.m. in the presence of the witnesses and
\nrecorded his confessional statement. A requisition was given to the Chief
\nJudicial Magistrate, Nagercoil for conducting test identification parade and the
\nsame was ordered. P.W.11, the Judicial Magistrate, Eraniel conducted the test
\nidentification parade on 21.11.2003 at 4.30 p.m. at Central Jail, Palayamkottai.
\nP.Ws.7,8 and 9 identified the accused correctly. At the time of identification
\nparade, no objection was raised. But, the accused would add that the accused was
\nshown to those witnesses when he was in the police custody. The proceedings of
\nthe identification parade was marked as Ex.P.4.\n<\/p>\n
\th)Following the same, the material objects recovered from the place of
\noccurrence and from the dead body of the deceased were sent for chemical
\nexamination by the Forensic Science Department, which resulted in Ex.P.9, the
\nChemical Examiner’s report and Ex.P.10, the Serologist’s report. On completion
\nof the 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. In order to substantiate the charges, the prosecution examined 18
\nwitnesses and relied on 15 exhibits and 6 M.Os. On completion of the evidence on
\nthe side of the prosecution, the accused was questioned under Section 313
\nCr.P.C. procedurally as to the incriminating circumstances found in the evidence
\nof prosecution witnesses. He denied them as false. No defence witness was
\nexamined. The trial court heard the arguments advanced and took a view that the
\nprosecution has proved its case beyond reasonable doubt and recorded an order of
\nconviction and sentence, as referred to above. Hence, this appeal has arisen.\n<\/p>\n
\t4.In support of the appeal, the learned counsel would submit that in the
\ninstant case, the prosecution rested its entire case on circumstantial evidence.
\nThe prosecution has not proved all or any of the circumstances relied on by it.
\nIt is not in controversy that the deceased, who was the driver and the accused,
\nwho was the Cleaner, were employed under P.W.2, the lorry owner. The first
\nincident, according to the prosecution, was that the lorry, in which the
\ndeceased was the driver and the accused was the cleaner, was taken to
\nMaharashtra and when they were proceeding from Maharashtra, the accused has
\nstolen Rs.10000\/-, out of which except Rs.300\/-, the balance was recovered, as
\nper the evidence. Had it been true, after stealing  such an amount, he would not
\nhave continued in service, but no steps have been taken by P.W.2. Thus, it is
\nquite clear that it was nothing, but false. The witness, who has been examined,
\nspeaking to the circumstances, was P.W.15, the Painter. He would say that when
\nthe Cleaner was unscrewing the wheel, the deceased kicked him and caused simple
\ninjury. Following the same, when loading work took place in the shop of P.W.5 on
\n28.08.2003 between 10.00 p.m. on 28.08.2003 and 12.00 midnight, P.W.6 was the
\nload man there. Thereafter, they proceeded to the shop of one Rajan, where the
\naccused refused to get into the lorry.  But, the said Rajan was not examined.\n<\/p>\n
\t5.The learned counsel would further add that P.W.8, the Bakery shop owner,
\nwas examined. According to P.W.9, who is the petty shop owner, the accused
\npurchased Cigarette for the driver on 29.08.2003. These were taken place,
\naccording to the witnesses, at about 3.00 a.m. and 2.45 a.m. respectively. In
\nthese night hours, those persons could not have seen the accused and the
\ndeceased and there was no occasion for identifying them, since they have seen
\nthe accused and the deceased on only one occasion. So far as these witnesses are
\nconcerned, the lower court relied upon the proceedings of the identification
\nparade. It is pertinent to point out that, the accused has categorically stated
\nthat at the time when he was in the police custody, he was shown to all the
\nwitnesses and hence, he has raised such an objection earlier and thus, the
\nidentification parade was of no legal consequence and that it should not be
\ngiven any evidentiary value at all and under these circumstances, the
\nprosecution was bereft of any evidence, but the lower court was prepared to
\naccept such evidence.\n<\/p>\n
\t6.Added further the learned counsel that, even assuming that the evidence
\nput forth by the prosecution is to the effect that it was the accused, who
\nattacked the deceased with Spanner and caused the death of the deceased, the act
\nof the accused would not come within the ambit of murder. All the evidence
\nprojected by the prosecution would indicate that there was an occasion, in which
\nthe accused was abused and assaulted by the deceased and the accused also
\nsustained simple injury. Further, there was an occasion on the date of
\noccurrence that the accused refused to get into the lorry and go with the
\ndeceased. Thus, he was tortured. Hence, the accused got sufficient provocation,
\nwhich resulted in the act of the accused. Hence, the act of the accused was
\nneither intentional nor premeditated. Therefore, the act of the accused cannot
\nbe termed as murder, but it is only a culpable homicide not amounting to murder,
\nwhich has got to be considered by this court.\n<\/p>\n
\t7.The court heard the learned Additional Public Prosecutor on the above
\ncontentions.\n<\/p>\n
\t8.The court has paid its anxious consideration on the submissions made.\n<\/p>\n
\t9.It is not in controversy that the deceased Balasubramanian was done to
\ndeath inside the lorry belonged to P.W.2 on 29.08.2003 at about 3.30 a.m., when
\nthe lorry was stopped in the highway. Following the inquest, the dead body was
\nsubjected to post-mortem by P.W.12, the Doctor, who has issued Ex.P.6, the post-
\nmortem certificate, wherein he has opined that the deceased would appear to have
\ndied of shock and haemorrhage due to the injuries sustained. Therefore, the fact
\nthat the deceased died out of homicidal violence was never questioned by the
\nappellant\/accused and hence, it has got to be recorded so.\n<\/p>\n
\t10.True it is, the prosecution rested its case on circumstantial evidence,
\nsince it has no direct evidence to offer. It is not in controversy that the
\naccused was employed as Cleaner in the lorry of P.W.2, in which the deceased was
\nthe Driver. On 28.08.2003, the lorry was taken to the shop of P.W.5 for loading
\nrubbers, in which P.W.6 was the load man. P.Ws.5 and 6 actually knew the accused
\nand the deceased. They have spoken to the fact that the load was over at about
\n12.00 midnight and thereafter, the lorry was taken to the shop of one Rajan,
\nwhere certain goods were loaded. Immediately thereafter, the accused had refused
\nto get into the lorry, since he was being abused and assaulted by the deceased.
\nIn the instant case, it is pertinent to point out that according to P.W.15, who
\nwas the Painter, when he was taking tea in a tea shop near the workshop, where
\nhe was working, he found that in front of his shop, one lorry was stopped and
\nthe Cleaner\/accused was unscrewing the wheel and at that time, the deceased
\nkicked him and caused simple injury. This was also the reason why the accused
\nrefused to get into the lorry at night hours. However, he also got into the
\nlorry, which was driven by the deceased.\n<\/p>\n
\t11.Further, the lorry was stopped in front of the shop of P.W.8, bakery
\nshop owner and it was he, who found both of them together at about 3.00 a.m. on
\nthe date of occurrence. At about 2.45 a.m., the accused was coming to the shop
\nof P.W.9, the petty shop owner and asked Cigarette for the driver of the lorry.
\nThus, both the witnesses have clearly spoken above these facts. Further,
\nP.Ws.5,6,8 and 9 have seen both the accused and the deceased together just a few
\nhours prior to the time of occurrence.\n<\/p>\n
\t12.In the instant case, the test identification parade has been conducted
\nwithin a reasonable time by the Judicial Magistrate, Eraniel. The witnesses,
\nnamely P.Ws.7,8 and 9, have clearly identified the accused. The contention now
\nput forth by the appellant’s side that the accused was shown to those witnesses
\nwhen he was in police custody, is of no avail, since the witnesses have given a
\nclear evidence in this regard and it remains unshaken. All would go to show that
\nthough the prosecution rested its case on circumstantial evidence, it was able
\nto make out a chain without a snap, pointing to the hypotheses that except the
\naccused, no one else could have committed the offence. Under these
\ncircumstances, the lower court was perfectly correct in accepting the evidence
\nof prosecution and finding the appellant guilty. Further, it has recorded a
\nfinding that it was he who attacked the deceased and caused the death of the
\ndeceased.\n<\/p>\n
\t13.Coming to the question as to the nature of the act of the accused, the
\ncourt is able to see sufficient force in the contention of the learned counsel
\nfor the appellant. Admittedly, both the accused and the deceased were employed
\nunder P.W.2 as Cleaner and Driver respectively. At the earliest, it was the
\ndriver, namely the deceased, who gave complaint to P.W.2, the owner that the
\nCleaner has taken away Rs.10,000\/- and subsequently, during travel, there was an
\noccasion, in which the deceased Driver has not only abused the accused, but also
\nassaulted him. P.W.15 has been examined, who spoke to the fact that on one
\noccasion, the deceased kicked the accused\/cleaner and caused simple injury.
\nP.W.6 has spoken to the fact that the accused refused to get into the lorry, in
\nview of the fact that he was abused and assaulted by the lorry driver. The above
\nincident has taken place a few hours prior to the time of occurrence. Thus, it
\nwould be quite clear that there was an occasion, in which the deceased, who was
\nthe lorry driver, has abused and assaulted the accused and caused simple injury
\nto him and hence, naturally one could have been provoked. Under these
\ncircumstances, the occurrence has followed on 29.08.2003. Thus, in the instant
\ncase, there was neither premeditation nor intention, but due to provocation, the
\naccused attacked the deceased with the Spanner and caused his death. Under these
\ncircumstances, the act of the accused cannot be termed as murder, but it would
\nattract the penal provision of Section 304(I) IPC. In the opinion of the court,
\nawarding punishment of 7 years R.I. would meet the ends of justice.\n<\/p>\n
\t14.In the result, the conviction and sentence imposed on the appellant
\nunder Section 302 IPC is modified to one under Section 304(I) IPC and the
\nappellant is directed to suffer      7 years R.I. The sentence already undergone
\nby the appellant is ordered to be given set off. The fine amount imposed by the
\nlower court under Section 302 IPC shall be treated as fine amount imposed under
\nSection 304(I) IPC. With the above modification in conviction and sentence, this
\ncriminal appeal is dismissed.\n<\/p>\n
vvk
\nTo<\/p>\n
1.The Sessions Judge,
\n  Kanyakumari Division
\n  at Nagercoil.\n<\/p>\n
2.The Inspector of Police,
\n  Thuckalay,
\n  Kanyakumari District.\n<\/p>\n
3.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Moni Alias Dhanasekharan vs State Of Tamil Nadu on 9 January, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09\/01\/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL APPEAL NO.61 OF 2006 Moni alias Dhanasekharan .. Appellant Vs. State of Tamil Nadu, through the Inspector 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-198727","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMoni Alias Dhanasekharan vs State Of Tamil Nadu on 9 January, 2008 - 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\/moni-alias-dhanasekharan-vs-state-of-tamil-nadu-on-9-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Moni Alias Dhanasekharan vs State Of Tamil Nadu on 9 January, 2008 - 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