{"id":251511,"date":"2007-04-18T00:00:00","date_gmt":"2007-04-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mani-alias-essaki-vs-state-through-on-18-april-2007"},"modified":"2016-10-10T20:34:47","modified_gmt":"2016-10-10T15:04:47","slug":"mani-alias-essaki-vs-state-through-on-18-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mani-alias-essaki-vs-state-through-on-18-april-2007","title":{"rendered":"Mani Alias Essaki vs State Through on 18 April, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Mani Alias Essaki vs State Through on 18 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 18\/04\/2007\n\nCORAM\nTHE HONOURABLE MR. JUSTICE M. CHOCKALINGAM\nAND\nTHE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR\n\nCriminal Appeal (MD) No.631 OF 2005\n\nMani alias Essaki\t\t..  Appellant\n\nVs\n\nState through\nInspector of Police,\nKulasekaram Police Station,\nKanyakumari District.\nCrime No.869\/2001\t\t..  Respondent\n\n\n\tAppeal filed under Section 374<\/a> Cr.P.C., against the Judgment in\nS.C.No.58\/2003 dated 25.10.2005 on the file of the Principal Sessions Judge,\nKanyakumari at Nagercoil.\n\n!For Appellant\t:\tMr.P.Jeyapaul\n\n^For Respondent\t:\tMr.A.Balaguru\n\t\t\tAddl.Public Prosecutor\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by M.CHOCKALINGAM,J.)<\/p>\n
\tChallenging the Judgment of the Principal Sessions Judge, Nagercoil made
\nin S.C.No.58\/2003, the sole accused, on being found guilty as per the charge of
\nmurder and awarded life imprisonment along with a fine and default sentence has
\nbrought forth this appeal.\n<\/p>\n
  \t2.The short facts necessary for the disposal of this appeal can be stated
\nthus:\n<\/p>\n
\t(a)The accused\/appellant is the husband of the deceased, Ambili.  The
\nsister of the deceased  Ambili, was given in marriage to the accused ten years
\nprior to the occurrence.  But, she deserted the matrimony and went away.
\nAfterwards, the deceased was given marriage to the accused.  For eking his
\nlivelihood, the accused used to go to Kerala and used to come to the native
\nplace once in a month.  He developed suspicion over the fidelity of his wife,
\nthe deceased.\n<\/p>\n
\t(b)On 25.12.2001, there was quarrel which arose between the accused and
\nthe deceased.  The deceased left the house of the accused and went to the
\nparental home.  On 26.12.2001, at about 8.00 a.m., the accused went over there
\nand attacked his wife, the deceased, with a Kataari on different parts of the
\nbody and he fled away from the place of occurrence.  This was witnessed by
\nP.Ws.1 to 4.  P.W.1 is the mother of the deceased, P.W.2 is the daughter of the
\ndeceased and the accused and P.Ws.3 and 4 are the neighbours of P.W.1.
\nImmediately P.W.1 took the severely injured deceased to Kulasekaram Police
\nStation and gave a complaint which is marked as Ex.P.1.  P.W.18, the Sub
\nInspector of Police, attached to Kulasekaram Police Station registered a case on
\nthe basis of Ex.P.1 in Crime No.869\/2001 under Section 307<\/a> of IPC.  The F.I.R.,
\nEx.P.21, was despatched to the Court.  Then P.W.1 took the injured to
\nKulasekaram Government Hospital, where P.W.10, the doctor, attached to the said
\nhospital, was on duty.  At about 9.30 a.m., the deceased was medically examined
\nand was given the initial treatment. He gave Ex.P.9-the Accident Register.
\nThereafter, the deceased was sent to Nagercoil Government Hospital, for further
\ntreatment on the same day.  P.W.11, the doctor, attached to the said hospital,
\nadmitted the deceased Ambili at about 10.55 a.m. and performed operations to the
\ndeceased.  P.W.11, the doctor, attached to the said hospital, also issued the
\nCase Sheet in that regard, which is marked as Ex.P.10.  On 7.1.2002, the
\ndeceased was sent to Tirunelveli Government Hospital for further treatment.
\nP.W.12, the doctor, attached to the said hospital, admitted the deceased at
\nabout 4.00 p.m. on 7.1.2002.  P.W.13, the doctor, attached to Tirunelveli
\nGovernment Hospital, medically examined the deceased and gave Ex.P.11-the Case
\nSheet.\n<\/p>\n
\t(c)Pending treatment, P.W.19, the Inspector of Police, took up the
\ninvestigation, proceeded to the spot, made an inspection in the presence of
\nwitnesses and prepared Ex.P.2-the Observation Mahazar and Ex.P.22-the rough
\nsketch.  He also recovered M.O.4-the sample earth and M.O.5-the blood stained
\nearth under the cover of Ex.P.23-Athakshi.  He examined the witnesses and
\nrecorded their statements.  On 26.12.2001, at about 6.00 p.m. the accused was
\narrested.  The accused came forward voluntarily to give a confessional
\nstatement, the admissible part of which is marked as Ex.P.25.  Consequent upon
\nthe confessional statement, the accused produced M.O.1-Kataari  in the presence
\nof witnesses and the same was recovered under a cover of Athakshi-Ex.P.26.  The
\naccused was sent for judicial custody.  On 24.1.2002, at about 10.30 a.m.,
\ndespite treatment, the injured Ambili died and the death intimation under
\nEx.P.12, was given to the respondent Police Station.  On receipt of the death
\nintimation, the case was altered to one under Section 302<\/a> of IPC and the Express
\nReport-Ex.P.27, was despatched to the Court.  Them P.W.19, went to the hospital,
\nconducted inquest on the dead body in the presence of witnesses and
\npanchayatdars and prepared Ex.P.28-the Inquest Report.\n<\/p>\n
\t(d)Pursuant to the requisition made, P.W.15, the doctor, attached to
\nTirunelvei Government Hospital conducted autopsy on the dead body of the
\ndeceased and gave Ex.P.14-the Postmortem certificate, wherein he has opined that
\nthe deceased would appear to have died of complications of stab injuries to the
\nregion of abdomen.  A requisition under Ex.P.17, was forwarded to the concerned
\nJudicial Magistrate for sending the material objects for the chemical analysis
\nby the Forensic Department.  Accordingly, all the material objects were
\nsubjected to chemical analysis by the Forensic Department which resulted in two
\nreports, viz., Ex.P.19-the Chemical Analyst Report and Ex.P.20-The Serologist
\nReport.  The investigating officer completed the investigation and filed the
\nfinal report.\n<\/p>\n
\t3.The case was committed to Court of Sessions.  Necessary charges were
\nframed.  In order to substantiate its case, the prosecution marched 19 witnesses
\nand also relied upon 28 exhibits and marked 8 material objects.\n<\/p>\n
\t4.On completion of the evidence on the side of the prosecution, the
\naccused was questioned under section 313<\/a> Cr.P.C., as to the incriminating
\ncircumstances found in the evidence of the prosecution witnesses and he denied
\nthem as false.  No defence witness was examined. The Trial Court heard the
\narguments advanced on either side, scrutinised the materials, took the view that
\nthe prosecution has proved its case beyond reasonable doubt, found the
\nappellant\/accused guilty under Section 302<\/a> of IPC and awarded life imprisonment.
\nAggrieved over the conviction and sentence, the accused has preferred this
\nappeal before this Court.\n<\/p>\n
\t5.Advancing his arguments on behalf of the appellant\/accused,
\nMr.P.Jeyapaul, learned Counsel  inter-alia made the following submissions:\n<\/p>\n
\t(a)In the instant case,  the occurrence has taken place on 26.12.2001 at
\nabout 8.00 a.m.  The prosecution examined four as eye witnesses out of whom
\nP.Ws.1 and 3 have turned hostile.  It is pertinent to point out that P.W.1 is
\nnone else than the mother of the deceased.  P.W.2, the female child of the
\ndeceased and the accused, was nine years old at the time of evidence, and was
\nonly six years old child at the time of occurrence.  The child witness, and that
\ntoo, at the tender age of 6 years, could not have given the narration of the
\nincident as brought forth by the prosecution and therefore, the evidence of
\nP.W.2 should have been outrightly rejected by the Trial Court. Thus, P.W.4, was
\nthe only evidence available for the prosecution, who claimed to be the neighbour
\nof P.W.1.  Even if the evidence of P.W.4 is carefully scrutinised, it would
\nreveal the inconsistency and thus, the uncorroborated testimony of P.W.4 should
\nnot have been accepted by the Trial Court.\n<\/p>\n
\t(b)Added further, the learned counsel that the medical opinion canvassed
\nby the prosecution did not support the case of the prosecution, since the
\ndeceased died after nearly a month, i.e., 24.01.2002. Also, the medical opinion
\ngiven by P.W. 15, the doctor, attached to Tirunelveli Government Hospital, who
\nconducted the autopsy on the dead body and who has opined that Injury No.3 was
\nfatal and as a result of which, the death has been directly caused, cannot be
\naccepted for the simple reason that even at the earliest stage, P.W.11, the
\ndoctor, attached to Nagercoil Government Hospital, who conducted the operation,
\nhas given in his evidence that puss was found and in all fairness, the medical
\nopinion should have been to the extent stating that the Septicemia was also
\nfound.  But, P.W.15, the doctor, had not done so.  There would have been all
\npossible complications and they were not brought forward before the Trial Court.
\nBut, it should have been done.  Under the circumstance, it was claimed by the
\nprosecution that the medical opinion was in support of the prosecution case.\n<\/p>\n
\t(c)The learned counsel also submitted that the alleged confession and
\nrecovery of M.O.1-Kataari, was nothing but an introduction by the prosecution to
\nsuit its case.  The evidence adduced was not worth mentioning and under the
\ncircumstance, the prosecution has not proved its case beyond the reasonable
\ndoubt.  Added further, the learned counsel that even assuming that the
\nprosecution has proved its case beyond reasonable doubt, the act of the accused
\nwho attacked the deceased with M.O.1-Kataari, would not attract the penal
\nprovision of murder for more reasons than one.  The occurrence has taken place
\non 26.12.2001 and the deceased died on 24.01.2002, i.e, after a period of a
\nmonth and from the evidence of P.W.11, the doctor attached to Nagercoil
\nGovernment Hospital, it would be quite clear that even at the time of operation,
\npuss was found and even P.W.15, the doctor, attached to Tirunelveli Government
\nHospital, who conducted the autopsy on the dead body of the deceased, has
\ncategorically opined that at the time of<\/p>\n
postmortem, puss was found and all would go to show that complications has
\narisen during the treatment.  Thus, it would be quite clear that it was not the
\nintention of the accused to kill the deceased or it was not the direct
\nconsequence.  Therefore, the act of the accused would not attract the penal
\nprovision of murder and this has got to be considered by this Court.\n<\/p>\n
\t6.The Court heard the learned Additional Public Prosecutor on the above
\ncontentions and paid its anxious consideration on the submissions made and made
\na thorough scrutiny of the materials available.\n<\/p>\n
\t7.In the instant case, it is not a fact in controversy that the deceased
\nAmibili was attacked by the accused in an incident that took place on 26.12.2001
\nat about 8.00 a.m., in the house of parental home of the deceased.  The fact
\nthat the sister of the deceased was given in marriage to the accused ten years
\nprior to the occurrence and that she deserted the matrimonial life and
\nthereafter the deceased was given in marriage to the accused and a female child,
\nP.W.2, was born, is not disputed by the accused.\n<\/p>\n
\t8.Insofar as the 4 witnesses examined by the prosecution in respect of the
\noccurrence, P.Ws.1 and 3 have turned hostile.  But, the prosecution to its
\nbenefit, had the evidence of P.Ws.2 and 4.  The contention put forth by the
\nlearned counsel for the appellant that P.W.2,  happened to be a child of 6 years
\nold at the time of occurrence and her evidence should not have been accepted by
\nthe Trial Court, remains rejected for the simple reason that the Trial Court has
\narrived to the satisfaction, after testing the mental maturity and formed its
\nopinion that it was the accused who committed the crime.  Even though, P.W.2 was
\na child of 6 years old at the time of occurrence and 9 years old at the time of
\nevidence, her evidence has to be accepted.\n<\/p>\n
\t9.P.W.4, was the neighbour of P.W.1.  This fact is not disputed at the
\ntime of cross examination.  He has deposed that he was an eyewitness to the
\noccurrence when the accused attacked the deceased with M.O.1-Kataari.  Apart
\nfrom this, not even a reason or circumstance is attributed to P.W.4 as to why he
\nshould come before the Court of law to give evidence against the accused and
\nhence, without any impediment, the evidence of P.W.4 has got to be accepted.
\nThe evidence of P.W.2 coupled with the evidence of P.W.4 would clearly point out
\nthe act of the accused.\n<\/p>\n
\t10.Yet another circumstance, is the recovery of M.O.1-Kataari pursuant to
\nthe confessional statement given by the accused.  Sufficient evidence has been
\nbrought to the notice of the Trial Court in this regard.  Thus, the prosecution
\nhas proved that it was the accused who attacked the deceased with M.O.1-Kataari
\nat the time of incident.\n<\/p>\n
\t11.The next question that would arise for consideration of this Court is
\nwhether can it be stated that the act of the accused would attract the penal
\nprovision of murder. If the evidence are analysed carefully, the Court has to
\nanswer in negative.  The Court is of the opinion that it would be one of
\nculpable homicide, not amounting to murder.  The occurrence has taken place in
\nthe house of the parental home of the deceased,  There was a quarrel between the
\naccused and the deceased on the previous day at the house of the accused.
\nThereafter, the deceased left the house of the accused and went to her parental
\nhome.  The next morning, i.e., 26.12.2001, the accused went over there and he
\nhas attacked the deceased.  As stated above, the act of the accused in attacking
\nthe deceased remains proved.  But, at the same time, she was taken to
\nKulasekaram Government Hospital, where P.W.10, the doctor, attached to the said
\nhospital, gave the initial treatment.  Thereafter, the deceased was taken to
\nNagercoil Government Hospital, where she was medically examined by P.W.11, the
\ndoctor attached to the said hospital and Ex.P.9-the Wound Certificate was
\nissued.  Even, P.W.11, the doctor who has been examined before the Court, has
\ncategorically deposed that at the time of operation, puss was found and
\nthereafter, the operation was effected and she was under treatment.  Despite
\ntreatment, the deceased died after a month, i.e., 24.01.2002.  But, the learned
\ncounsel for the appellant would submit that the medical opinion was not in
\nfavour of the prosecution.  But, at the same time, it is pertinent to point out
\nthat P.W.15, the doctor, attached to Tirunelveli Government Hospital, has given
\na clear opinion at the time of his evidence before the Court, that Injury No.3
\nwas a fatal one and that was the cause of the death of the deceased, though puss
\nwas found at the time of operation and subsequently, nowhere, the doctor has
\ndeposed that the death was due to any complication that has arisen thereafter or
\nit would amount to Septicemia.  But, contrarily he has stated that Injury No.3
\nwas the direct cause for the death and that part of the medical evidence, in the
\nopinion of the Court, would lead to the conclusion that it was a direct cause.
\nThe act of the accused would not attract the penal provision of murder as it was
\nnot an intended one, since the deceased was under treatment for a period of one
\nmonth and that the medical opinion was canvassed to that effect.  At the same
\ntime, the accused should have got the intention to cause injury to the deceased,
\nwhich in the ordinary course of event, would likely to cause the death.\n<\/p>\n
\t13.Under such circumstances, this Court is of the considered view that it
\nis a fit case where the conviction and sentence under section 302<\/a> IPC can be
\nmodified to one under section 304(i)<\/a> IPC and awarding seven years of rigorous
\nimprisonment would meet the ends of justice.\n<\/p>\n
\t14.Hence, the conviction of the appellant\/accused, for the offence under
\nSection 302<\/a> IPC and the sentence of life imprisonment, are modified to one under
\nSection  304(i)<\/a> of IPC and punishment of seven years rigorous imprisonment is
\nawarded.  The sentence already undergone by the appellant shall be given set
\noff. The fine amount imposed under section 302<\/a> of IPC by the Trial Court shall
\nbe treated as fine amount under Section 304(i)<\/a> of IPC.\n<\/p>\n
\t15.With the above modification in conviction and sentence, the criminal
\nappeal is dismissed.\n<\/p>\n
To<\/p>\n
1.The Principal Sessions Judge, Kanyakumari District.\n<\/p>\n
2.The Inspector of Police,
\n   Kulasekaram Police Station,
\n   Kanyakumari District.\n<\/p>\n
3. The Additional Public Prosecutor,
\n   Madurai Bench of Madras High  Court, Madurai.\n<\/p>\n
\n","protected":false},"excerpt":{"rendered":"
Madras High Court Mani Alias Essaki vs State Through on 18 April, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18\/04\/2007 CORAM THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Criminal Appeal (MD) No.631 OF 2005 Mani alias Essaki .. Appellant Vs State through Inspector of Police, Kulasekaram Police […]<\/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-251511","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMani Alias Essaki vs State Through on 18 April, 2007 - 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\/mani-alias-essaki-vs-state-through-on-18-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mani Alias Essaki vs State Through on 18 April, 2007 - 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