{"id":228398,"date":"2010-06-28T00:00:00","date_gmt":"2010-06-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-subbiah-vs-state-on-28-june-2010"},"modified":"2019-01-01T12:52:06","modified_gmt":"2019-01-01T07:22:06","slug":"r-subbiah-vs-state-on-28-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-subbiah-vs-state-on-28-june-2010","title":{"rendered":"R.Subbiah vs State on 28 June, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">R.Subbiah vs State on 28 June, 2010<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 28\/06\/2010\n\nCORAM\nTHE HONOURABLE MR. JUSTICE M.CHOCKALINGAM\nand\nTHE HONOURABLE MR. JUSTICE M.DURAISWAMY\n\nCriminal Appeal (MD) No.186 of 2009\n\n\nR.Subbiah                     ..    Appellant\n\nvs\n\nState, rep. by\nInspector of Police,\nChinnalapatty Police Station,\nDindigul District.\n(Crime No.55\/2005)             ..   Respondent\n\n\nCriminal Appeal filed under Section 374(2)Cr.P.C against the Judgment of\nconviction and sentence dated 28.9.2006 made in S.C.No.172 of 2005 on the file\nof the Principal Sessions Judge, Dindigul.\n\n!For appellant  ... Mr.K.Ashok Kumar Ram\n^For respondent ... Mr.P.N.Pandidurai\n                    Addl.Public Prosecutor\n\n:JUDGMENT\n<\/pre>\n<p>(Judgment of the Court was delivered<br \/>\n by M.CHOCKALINGAM,J)<\/p>\n<p>\tChallenge is made to the judgement of the  Principal Sessions Division,<br \/>\nDindigul District dated 28.9.2006 made in S.C.No.172 of 2005 whereby the sole<br \/>\naccused\/appellant stood charged, tried and found guilty of murder and awarded<br \/>\nlife imprisonment along with a fine of Rs.5,000\/-, in default, to undergo three<br \/>\nyears rigorous imprisonment, apart from five years rigorous imprisonment and<br \/>\nfine of Rs.3,000\/- on each count under Section 307 IPC (2 counts).\n<\/p>\n<p>\t2. The short facts that are necessary for the disposal of this appeal can<br \/>\nbe stated as follows:\n<\/p>\n<p>\t(i)  PW.1 is the wife of the deceased, Chinnakkalai.  PW.2 is the daughter<br \/>\nof PW.1 and the deceased and she was given in marriage to the accused\/appellant.<br \/>\nHe was a native of Vellottam. PW.3 is the son of PW.1.  From the time of<br \/>\nmarriage, he did not maintain her properly and hence, she used to go and stay in<br \/>\nher parental home. On 12.3.2005, that was on the date of occurrence, in the<br \/>\nmorning hours, he came to his father-in-law&#8217;s house and asked to send his wife<br \/>\nalong with him and he was informed that his father-in-law, the deceased had gone<br \/>\nout and she would come after her father&#8217;s return and in the evening hours, at<br \/>\n6.00 p.m, he came to his father-in-law&#8217;s house and asked his wife to come with<br \/>\nhim but he was informed that since he was always quarrelling with her, after<br \/>\nconvening a panchayat, she would be sent and thereafter, at 9.00 p.m, he came<br \/>\nwith an aruval, MO.1 and attacked the deceased indiscriminately and when PW.2<br \/>\nand PW.3 intervened, they were also attacked and they also sustained injuries.\n<\/p>\n<p>\t(ii) Immediately, PW.1 rushed to the respondent police station along with<br \/>\nPW.2 and PW.3  where PW.18, Sub-Inspector of Police was on duty and gave a<br \/>\ncomplaint, Ex.P.1 and on strength of which a case was registered in Crime<br \/>\nNo.55\/2005 under Sections 324 and 302 IPC.  Express F.I.R., Ex.P.23, was<br \/>\ndespatched to the Court.\n<\/p>\n<p>\t(iii) On receipt of the copy of the F.I.R, the Inspector of Police, PW.19,<br \/>\ntook up investigation and proceeded to the spot, made an inspection and prepared<br \/>\nan Observation Mahazar Ex.p.11 and Rough Sketch Ex.P.24 and he also conducted<br \/>\ninquest over the dead body of the deceased in the presence of witnesses and<br \/>\npanchayatdars and the inquest report was marked as Ex.P.25.  The body was<br \/>\nsubjected to Post-Mortem by PW.12, attached to the Government Hospital,<br \/>\nDindigul, and he gave a Post-Mortem Certificate, which was marked as Ex.P.17<br \/>\nwherein it is mentioned that the deceased would appear to have died of shock and<br \/>\nhaemorrhage due to injuries sustained and injuries due to vital organs, about 12<br \/>\nto 16 hours prior to autopsy.\n<\/p>\n<p>\t(iv) Pending investigation, the accused was arrested on 16.3.2005.  When<br \/>\nhe was examined, he came to give a confessional statement in the presence of<br \/>\nwitnesses and recorded the same and the admissible portion of which was marked<br \/>\nas Ex.P.5 and he produced the Aruval, MO.1 used in the commission of offence and<br \/>\nthe same was recovered under the cover of Mahazar Ex.P.28.\n<\/p>\n<p>\t(v) On completion of the investigation, the investigating officer filed a<br \/>\nfinal report.  The case  was committed to the Court of Sessions.  Necessary<br \/>\ncharges were framed against the accused.\n<\/p>\n<p>\t3. In order to substantiate the charges levelled against the accused, the<br \/>\nprosecution examined 19 witnesses and relied on 28 Exhibits and 10 MOs.  On<br \/>\ncompletion of the evidence on the side of the prosecution, the accused was<br \/>\nquestioned under Section 313 Cr.P.C. on the incriminating circumstances found in<br \/>\nthe evidence of the prosecution witnesses, which was denied on the part of the<br \/>\naccused.  Neither witness was examined nor document was marked on the side of<br \/>\nthe defence.  The trial Court after hearing the arguments advanced by either<br \/>\nside and on considering the materials available on record, took the view that<br \/>\nthe prosecution has proved its case beyond reasonable doubts in respect of the<br \/>\ncharges levelled against the accused and found the accused guilty of the charges<br \/>\nand awarded punishments as referred to above.\n<\/p>\n<p>\t4. Advancing the arguments on behalf of the accused\/appellant, the learned<br \/>\ncounsel appearing for the appellant would submit that-\n<\/p>\n<p>\t(i) in the instant case, the prosecution had failed to prove its case<br \/>\nbeyond reasonable doubts.  It is true the prosecution had three eye-witnesses<br \/>\nbut they are all closely related to the deceased and they are not only<br \/>\ninterested witnesses but their evidence was thoroughly discrepant and it is<br \/>\nliable to be rejected.\n<\/p>\n<p>\t(ii) Apart from that, the injuries claimed by the witnesses, PW.2 and PW.3<br \/>\nwere not sustained injuries and the evidence was so artificial.\n<\/p>\n<p>\t(iii) The evidence of the Doctor, PW.12, who conducted autopsy and the<br \/>\ncontents of Post-Mortem Certificate Ex.P.17 did not corroborate the evidence of<br \/>\nocular testimony projected through PWs.1 to 3.\n<\/p>\n<p>\t(iv) The arrest and the so called confessional statement and the recovery<br \/>\nof Material Objects were nothing but cooked up for the purpose of the<br \/>\nprosecution case.\n<\/p>\n<p>\t(v) Added further the learned counsel that in the instant case, it is an<br \/>\nadmitted position that PW.2 is the wife of the accused\/appellant and during the<br \/>\nrelevant time, she was staying in the house of PW.1.  The accused came from his<br \/>\nnative place to the place of father-in-law at 6.00 p.m., when he was ill-<br \/>\ntreated, which would naturally provoke son-in-law, and when he was in drunken<br \/>\nmood at 9.00 p.m., he came and attacked the deceased and thus, there was<br \/>\nsufficient provocation and it was provoked by the father-in-law, the deceased,<br \/>\nand it was sustained provocation and it was lingering in the mind of the<br \/>\naccused\/appellant, which resulted in acting so and hence, it cannot be stated<br \/>\nthat he acted or done with an intention but due to sustained provocation and<br \/>\nhence, the Court has got to consider the same and it has got to be given effect<br \/>\nin recording a finding that it is not a case of murder but a case of culpable<br \/>\nhomicide not amounting to murder.\n<\/p>\n<p>\t5. The court heard the learned Additional Public Prosecutor on the above<br \/>\ncontentions and paid its anxious consideration on the submissions made and also<br \/>\nscrutinised the materials available.\n<\/p>\n<p>\t6. It is not in controversy that one Chinnakkalai, husband of PW.1 was<br \/>\ndone to death in the incident that had taken place at 9.00 p.m., on 12.3.2005<br \/>\nand following the inquest made by the Investigating Officer on the dead body and<br \/>\npreparation of the inquest report, the dead body was subjected to Post-Mortem by<br \/>\nDoctor, PW.12, who has categorically witnessed before the Court and the contents<br \/>\nof the Post-Mortem,  Ex.P.17, are that the deceased would appear to have died of<br \/>\nshock and haemorrhage due to injuries sustained and injuries due to vital<br \/>\norgans, about 12 to 16 hours prior to autopsy and thus, the fact that he died<br \/>\ndue to homicidal violence was never disputed before the trial Court or before<br \/>\nthis Court and hence, there is no impediment for the Court in recording so.\n<\/p>\n<p>\t7. In order to substantiate the charges levelled against the<br \/>\naccused\/appellant, the prosecution relied on the evidence of three eye-<br \/>\nwitnesses, which it marched before the trial Court.  It is true, PW.1 is the<br \/>\nwife, PW.2 is the daughter and PW.3 is the son of the deceased. PW.2 and PW.3<br \/>\nare injured witnesses.  It is settled proposition of law that merely on the<br \/>\nground of relationship, the evidence of the injured witnesses cannot be brushed<br \/>\naside but before acceptance, the Court must apply the test of careful scrutiny.<br \/>\nIn the instant case, after the test of careful scrutiny, the Court is satisfied<br \/>\nthat the evidence of these witnesses has got to be accepted and it is pointing<br \/>\nto the fact that PW.2, who is the wife of the accused\/appellant and also PW.3,<br \/>\nwho is the son of the deceased, were actually available at the time of the<br \/>\nincident.  When the accused was attacking Chinnakkalai, the deceased, PW.2 and<br \/>\nPW.3 intervened and in that course, they also sustained injuries.  They were<br \/>\nalso examined by the Doctor PW.11 who was examined before the Court and he  also<br \/>\ngave Accident Register Copy viz., Exs.P.14 and P.15 respectively, where the<br \/>\nplace of occurrence and the time of occurrence and the manner in which they<br \/>\nsustained injuries were clearly noticed.\n<\/p>\n<p>\t8. It is well settled proposition of law, in a give case when the<br \/>\nwitnesses happened to be the injured witnesses, their evidence should not be<br \/>\ndiscarded unless and until strong circumstances are noticed by the Court or a<br \/>\nstrong reason is brought out by the accused.  In the instant case, neither any<br \/>\ncircumstances is noticed nor any reason is brought to the notice of the Court.<br \/>\nHence, no impediment was felt for accepting the testimony of these witnesses.<br \/>\nThe ocular testimony projected through PWs.1 to 3 have been fully corroborated<br \/>\nby the evidence of the Doctor PW.12, who conducted Post-Mortem and also the<br \/>\ncontents  of the Post-Mortem Certificate Ex.P.17 apart from the evidence of<br \/>\nDoctor PW.11, who examined PW.2 and PW.3 and the contents of the Accident<br \/>\nRegister Copy Exs.P.14 and P.15.\n<\/p>\n<p>\t9. Yet another circumstance which is against the accused is the recovery<br \/>\nof MO.1 Aruval and also blood-stained shirt and dhothi viz., MO.9 and MO.10<br \/>\nbeing produced by the accused\/appellant following his confessional statement.<br \/>\nThis strong circumstance would connect the accused to the crime and thus, all<br \/>\nwould indicate that it was the accused who committed the crime.  Hence, the<br \/>\ncontention put-forth by the learned counsel for the appellant in that regard did<br \/>\nnot carry merit and they are liable to be rejected and accordingly, rejected.\n<\/p>\n<p>\t10. Insofar as the second line of argument, the Court is unable to agree<br \/>\nwith the learned counsel for the appellant.  In the instant case, from the<br \/>\nevidence of PW.1, it would be quite clear that, from the time of marriage, the<br \/>\naccused\/appellant did not maintain his wife properly which compelled her to stay<br \/>\nin her mother&#8217;s house.  In the evening hours, he came to his father-in-law and<br \/>\nhe asked him to send his wife PW.2, along with him.  From the time of marriage,<br \/>\nhe was not properly maintaining her and hence, he was informed that a panchayat<br \/>\nhas got to be convened and then only his daughter would be sent with him. There<br \/>\nwere exchange of words.  These exchange of words, in the opinion of the Court,<br \/>\ncannot in no way would be provocation.  Even assuming that the accused was<br \/>\nprovoked, he left the place, and he came back at about 9.00 p.m., with an<br \/>\nAruvual, MO.1 and attacked his father-in-law indiscriminately and caused his<br \/>\ninstantaneous death. Thus, there was nothing which would provoke the<br \/>\naccused\/appellant or the provocation would have sustained to cause such heinous<br \/>\ncrime.  Hence, the contention put-forth by the learned counsel for the appellant<br \/>\nthat there was a provocation, muchless sustained provocation cannot be<br \/>\ncountenanced.\n<\/p>\n<p>\t11. So, the act of the accused was actually one of murder attracting the<br \/>\npenal provision of Section 302 IPC, and awarding life imprisonment and fine has<br \/>\ngot to be sustained and accordingly, it is sustained. Insofar as the conviction<br \/>\nand sentence awarded under Section 307 IPC (2 counts) is concerned, at the time<br \/>\nof occurrence, PW.2 and PW.3  sustained injuries when intervened, while the<br \/>\ndeceased was attacking the deceased.  The act of the accused insofar as PW.2 is<br \/>\nconcerned, will attract only Section 326 IPC, and awarding five years rigorous<br \/>\nimprisonment is sufficient and insofar as PW.3 is concerned, he sustained simple<br \/>\ninjuries, which would attract only section 324 IPC and the punishment of simple<br \/>\nimprisonment for one year is sufficient and accordingly, it is  modified. The<br \/>\nfine imposed under Section 307 IPC (2) counts by the trial Court is ordered to<br \/>\nbe treated as one imposed under Section 326 IPC and 324 of the IPC. The<br \/>\nsentences awarded are to run concurrently.\n<\/p>\n<p>\t12. Accordingly, the Criminal Appeal is disposed of.\n<\/p>\n<p>asvm<\/p>\n<p>To<\/p>\n<p>1.The Principal Sessions Judge,<br \/>\n  Dindigul District.\n<\/p>\n<p>2.Inspector of Police,<br \/>\n  Chinnalapatty Police Station,<br \/>\n  Dindigul District.\n<\/p>\n<p>  (Crime No.55\/2005)<\/p>\n<p>3.The Additional Public Prosecutor,<br \/>\n  Madurai Bench of Madras High court,<br \/>\n  Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court R.Subbiah vs State on 28 June, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28\/06\/2010 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR. JUSTICE M.DURAISWAMY Criminal Appeal (MD) No.186 of 2009 R.Subbiah .. Appellant vs State, rep. by Inspector of Police, Chinnalapatty Police Station, Dindigul District. (Crime No.55\/2005) [&hellip;]<\/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-228398","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>R.Subbiah vs State on 28 June, 2010 - Free Judgements of Supreme Court &amp; 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\/r-subbiah-vs-state-on-28-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.Subbiah vs State on 28 June, 2010 - Free Judgements of Supreme Court &amp; 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