{"id":9815,"date":"2008-03-19T00:00:00","date_gmt":"2008-03-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shankar-vs-the-state-on-19-march-2008"},"modified":"2016-03-16T06:35:30","modified_gmt":"2016-03-16T01:05:30","slug":"shankar-vs-the-state-on-19-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shankar-vs-the-state-on-19-march-2008","title":{"rendered":"Shankar vs The State on 19 March, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Shankar vs The State on 19 March, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 19\/03\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE S.PALANIVELU\n\nCrl.A.(MD)No.177 of 2001\n\n\nShankar\t\t\t\t\t...  Appellant\n\n\nVs.\n\n\nThe State\nrep.by the Inspector of Police,\nK1, Anna Nagar Police Station,\nMadurai.\n(Crime No.535\/1997)\t\t\t\t...  Respondent\n\n\n\nPRAYER\n\nThis criminal appeal has been preferred under Section 374  Cr.P.C against\nthe judgment dated 18.12.2000 made in S.C.No.311 of 1998 by the First Additional\nSessions Judge cum Chief Judicial Magistrate, Madurai.\n\n!For Appellant   ... Mr.K.Jeganathan\n\t\t\n^For Respondent  ... Mr.N.Senthur Pandiyan, A.P.P.\n\t\t\n\n:JUDGMENT\n<\/pre>\n
(The judgment of the court was made by M.CHOCKALINGAM, J.)<\/p>\n
\tChallenge is made to the judgment of the Additional Sessions Division,
\nMadurai, made in S.C.No.311 of 1998, whereby the sole accused\/appellant stood
\ncharged, tried, found guilty under Section 302 IPC and awarded life
\nimprisonment.  Hence, this appeal has been brought forth by the appellant.\n<\/p>\n
\t2.  The short facts necessary for the disposal of the appeal could be
\nstated as follows:-\n<\/p>\n
\ta) P.W.2 is the wife of the deceased, Oottapandi and P.W.8 is the sister
\nof the deceased.  Both the accused and the deceased were rearing pigs and
\nengaged in that business. In that, they had rivalry, and they were on inimical
\nterms.  On the date of occurrence, i.e.,17.08.1997, at about 2.00 p.m., the
\ndeceased left the house telling that he was going to feed the pigs.  Till 4.00
\np.m. he did not return.  P.W.2 was informed that her husband and the accused
\nwere quarreling in front of Kaliyammal Temple.  The same was informed to P.W.8
\nalso.  Both of them were proceeding to that temple.  At that time, they found
\nthe accused chasing the deceased near Aravind Eye Hospital telling ” I will not
\nleave you”, and so saying, the accused attacked the deceased with a patta knife
\non different parts of the body. The said occurrence was witnessed by P.Ws.5 and\n<\/p>\n
9.  He fled away from the place of occurrence.  The deceased met with an
\ninstantaneous death.  P.W.1, who was a watchmen of the said hospital, witnessed
\nthe occurrence.  He immediately informed to P.W.6, the doctor, attached to
\nAravind Eye Hospital.  P.W.6, in turn informed to the control room, where
\nP.W.13, the wireless operator, was on duty, who in turn passed on the message to
\nP.W.14, the Head Constable.  P.W.14 informed to P.W.19, the Sub-Inspector of
\nPolice, who immediately proceeded to the hospital.  On the strength of the
\ninformation given by P.W.1, he received the complaint under Ex.P.1, as a result
\nof which, a case came to be registered under Section 302 IPC. Express FIR was
\ndespatched to the Court as well as to the Higher Officials.\n<\/p>\n
\tc)On receipt of the copy of the FIR, P.W.20, the Inspector of Police, took
\nup the investigation, proceeded to the place of occurrence, made an inspection
\nin the presence of witnesses and prepared Ex.P.5, the Observation mahazar, and
\nEx.P.14, the rough sketch. He conducted inquest on the dead body of the deceased
\nin the presence of witnesses and panchayatdars and prepared an inquest report,
\nEx.P.15.  He recorded the statement of the witnesses.  The dead body was sent to
\nthe hospital for post-mortem.\n<\/p>\n
\td) Following the same, P.W.7, the Doctor, attached to Rajaji Government
\nHospital, conducted autopsy on the dead body of the deceased and issued Ex.P.3,
\nthe post-mortem certificate, wherein he has opined that the deceased would
\nappear to have died out of shock and hemorrhage and due to the injuries
\nsustained and also corresponding injuries, and he would have died between 12.00
\nto 18.00 hours prior to autopsy.\n<\/p>\n
\te) Pending investigation, the investigator came to know that the accused
\nsurrendered before the Judicial Magistrate, Thirupthur, on 19.08.1997.  He
\napplied for the judicial custody, and the same was ordered.  At the time of
\nenquiry,  the accused voluntarily gave a confessional statement, which was
\nrecorded in the presence of witnesses, the admissible part of which was marked
\nas Ex.P.7. Pursuant to the confession, he produced M.O.3, Patta Knife, which was
\nrecovered under a cover of mahazar, Ex.P.8.  The accused was sent for judicial
\nremand.\n<\/p>\n
\tf)All the material objects recovered from the place of occurrence, and
\nfrom the dead body of the deceased and the weapon of crime recovered from the
\naccused, were sent for chemical analysis, which resulted in two reports, namely,
\nEx.P.11, the Chemical analyst’s report, and Ex.P.12, the Serologist’s report. On
\ncompletion of the investigation, the Investigating Officer has filed the final
\nreport before the concerned court.\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 20
\nwitnesses and relied on 17 exhibits and 6 M.Os.  On completion of the evidence
\non the side of the prosecution, the accused was questioned under Section 313
\nCr.P.C. as to the incriminating circumstances found in the evidence of
\nprosecution witnesses. He denied them as false.  On the side of the accused, no
\nwitness was examined. The lower court after hearing the arguments advanced, took
\nthe view that the prosecution has proved the case beyond reasonable doubt, found
\nhim guilty under Section 302 IPC and awarded punishments as referred to above.
\nUnder these circumstances, this appeal has arisen at the instance of the
\nappellant.\n<\/p>\n
\t4.Advancing arguments on behalf of the appellant,
\nMr.K.Jeganathan, the learned  counsel would submit that in the instant case, the
\nprosecution has not proved the case in any manner known to law.  The occurrence
\nhas taken place on 17.08.1997, at about 4.00 p.m. P.Ws.1 to 5 and 8 and 9 have
\nbeen examined as eye witnesses, out of whom, P.Ws. 3 and 4 have turned hostile.
\nP.Ws 2 and 5 have claimed that when they were nearing the place of occurrence,
\nthey found the accused chasing the deceased and giving him blow with the patta
\nknife.  Learned counsel would submit that P.Ws.2 and 5 could not have been in
\nthe place of occurrence at all, for the simple reason that at the time of
\noccurrence, they were actually in the house, and after receiving the information
\nabout the incident, they came to the place of occurrence.  There is no
\npossibility that P.Ws.2 and 5 could have been in the place of occurrence at all.
\nEven from the evidence of P.W.2, it would be quite clear that she came to the
\nplace of occurrence between 3.00 p.m or 3.30 p.m.  If to be so, even according
\nto the prosecution, at 4.30 p.m, she could not have heard about the occurrence
\nearlier. This would indicate that she could not have been an eyewitness.  As far
\nas the other two witnesses were concerned, Ex.P.1 information given to the Sub-
\ninspector of Police by P.W.1 would clearly indicate that no one could have been
\nan eyewitness.\n<\/p>\n
\t5.Added further, P.W.1 has not mentioned or whispered anything about the
\npresence of P.Ws.2,5,8 and 9.  Thus, it would be quite clear that no one was
\npresent, and he has stated that it was known to the relations of the deceased.
\nHe further stated that the First Information Report has been created and written
\nin such a way to include any one of them as an eyewitness, as if they have seen
\nthe occurrence.  In Ex.P.1, the watchman has not given any identity of the
\naccused.  At the same time, from the evidence  of others, it is clear that one
\nwitness by name Sankar was there at the time and place of occurrence.  He
\naccompanied the deceased also.  But, the investigator has not proceeded
\ninvestigation in that line, and he has fixed the accused\/appellant, who was
\nthoroughly innocent.  Even the so called eyewitnesses could not give any proper
\nevidence, and if their evidence is viewed from the post-mortem certificate, it
\nwould clearly reveal that the witnesses could not have been in the place of
\noccurrence at all.  Thus, all put together would go to show that they could not
\nhave been eyewitnesses.\n<\/p>\n
\t6.Added further, when the occurrence was witnessed by P.W.2, the wife, and
\nP.W.8, the sister, it is highly surprising why the information and complaint
\nshould be received from a third party, the watchman, P.W.1.  This would indicate
\nthat no one could have seen the occurrence at all.  Even in the complaint,
\nEx.P.1, nowhere he has stated that he already knew the accused. In a given case
\nlike this, identification parade should have been conducted, but it was not done
\nso. Hence, it is fatal to the prosecution case, and the prosecution has not
\nproved the case beyond reasonable doubt. Hence, the accused\/appellant is
\nentitled for acquittal.\n<\/p>\n
\t7.Added further the learned counsel that, even assuming that it was the
\naccused who attacked  the deceased at the time and place of occurrence and
\ncaused instantaneous death of the deceased, the act of the accused would not
\nattract the penal provision of murder.  Even from the evidence of P.W.2, it is
\nseen that there was a quarrel going on between the deceased and the accused in
\nKaliyamman Kovil, and when the deceased was running near the hospital, the
\noccurrence has taken place.  Apart from this, actually there was enmity
\nprevailing between the parties, as a result of which, the accused has acted so.
\nHence, the act of the accused is neither premeditated nor intentional, and
\nhence, this legal aspect has to be considered by the Court.\n<\/p>\n
\t8.The Court heard the learned Additional Public Prosecutor on the above
\ncontentions and paid its anxious consideration on the submissions made and also
\nmade a thorough scrutiny of the materials available.\n<\/p>\n
\t9.It is not in controversy that the deceased Oottapandi was done to death
\nin an occurrence that took place on 17.08.1997, in front of Aravind Eye
\nHospital. Following the inquest made by the investigator, the dead body was
\nsubjected to post-mortem by P.W.7. He categorically opined in his post-mortem
\ncertificate, Ex.P.3,   that the deceased would appear to have died of shock and
\nhemorrhage and the injuries sustained by him. The fact that he died out of
\nhomicidal violence was never disputed by the accused\/appellant. Hence, it has
\ngot to be recorded so.\n<\/p>\n
\t10.In order to substantiate the case of the prosecution that it was the
\naccused who attacked the deceased, Oottapandi, with the patta knife at the time
\nand place of occurrence and caused death, the prosecution has examined P.Ws.1 to
\n5 and 8 & 9.  Out of these witnesses, P.Ws.3 and 4 have turned hostile.  But
\neven then, the Court is satisfied that the witnesses who have been examined by
\nthe prosecution, have spoken in one voice as to the entire incident.  P.Ws 2 and
\n8, who were the wife and the sister of the deceased respectively, on hearing
\nabout the quarrel between the accused and the deceased at the place of
\nKaliyammal Temple went over there, where they found the accused chasing the
\ndeceased near Aravind Eye Hospital with patta knife, following which they have
\nwitnessed the accused attacking the deceased. It is an undisputed fact that
\nP.Ws.2 and 8 knew the accused very well earlier.  Hence, they could very well
\nidentify him. Apart from this, P.W.1, a watchman, has also seen the entire
\noccurrence.  It is true that P.W.1 did not know the accused, but he has averred
\nin the report that later, he came to know about the name of the accused.
\nFurther, the very mention of FIR and the statement of P.W.1, independent
\nwitness, a watchman, in Aravind Eye hospital would indicate that the occurrence
\nwas known to the relatives of the deceased.  It would be quite clear that P.Ws.2
\nand 8 have witnessed the occurrence. Apart from this, P.Ws. 8 and 9 have
\nactually seen the accused running away from the place of occurrence with blood
\nstained patta knife.  Thus, all would go to show that they have seen the
\noccurrence which is the first part and the accused running away with blood
\nstained knife from the place of occurrence which is the second part and that
\nwould be pointing to the guilt of the accused.\n<\/p>\n
\t11.Now, it is brought to the notice of the Court that there was one Sankar
\nwho has been examined and witnessed that he was in the company of the witness
\nhimself having involvement in the occurrence.  This argument is now put forth
\nbefore the appellate forum without having any factual foundation, and not even
\nany suggestion was made to any one of the eyewitnesses or to the investigator.
\nThis contention put forth by the learned counsel cannot be accepted at this
\nstage, and this has got to be rejected.  It is pertinent to point out that the
\nmedical opinion  canvassed before the trial Court was fully in support of the
\nprosecution case.  Yet another circumstance is the recovery of weapon of crime,
\nwhen he was in the police custody, and the witnesses examined in that regard
\nremained unshaken.  Thus, all would go to show that the prosecution has proved
\nthe case beyond reasonable doubt in respect of the fact that it was the accused
\nwho attacked the deceased and caused his death instantaneously.\n<\/p>\n
\t12. Now, coming to the second line of argument, this Court is able to see
\nforce that P.Ws.2 and 8 only after hearing about the wordy altercation between
\nthe deceased and the accused both have proceeded to the spot.  Though P.W.4
\nturned hostile, he has categorically admitted that there was a wordy altercation
\nbetween the accused and the deceased for more than 15 minutes at the spot.  It
\nis pertinent to point out that they have business rivalry in pigs and thus, at
\nthe time and place of occurrence, there was a wordy altercation which has
\nculminated in the occurrence. As such, now it could be stated that the act of
\nthe accused was neither premeditated nor intentional.  But he has acted so and
\ncaused the death of the deceased.  At best, it is only a culpable homicide not
\namounting to murder. Hence, the act of the accused would not attract the penal
\nprovision of murder, but in the opinion of the Court, it would attract the penal
\nprovision of Section 304(ii) IPC and awarding punishment of ten years Rigorous
\nImprisonment would meet the ends of justice.  Accordingly, the conviction and
\nsentence imposed on the appellant under Section 302 IPC are set aside and
\ninstead, he is convicted under Section 304 (ii) IPC and sentenced to undergo ten
\nyears Rigorous Imprisonment.  The period of sentence already undergone by the
\naccused\/appellant shall be given set off. The fine amount imposed under Section
\n302 IPC shall be treated as fine amount imposed under Section 304 (ii) IPC. It
\nis reported that the accused\/appellant is on bail.  Hence, the concerned
\nSessions Judge shall take necessary steps to secure the appellant\/accused and
\ncommit him to prison to undergo the remaining period of sentence.\n<\/p>\n
\tWith the above modification in the conviction and sentence, the criminal
\nappeal is dismissed.\n<\/p>\n
ssm<\/p>\n
To<\/p>\n
1.The First Additional Sessions Judge
\n  cum Chief Judicial Magistrate, Madurai<\/p>\n
2.The Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Shankar vs The State on 19 March, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19\/03\/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.A.(MD)No.177 of 2001 Shankar … Appellant Vs. The State rep.by the Inspector of Police, K1, Anna Nagar Police Station, Madurai. (Crime No.535\/1997) … […]<\/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-9815","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nShankar vs The State on 19 March, 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\/shankar-vs-the-state-on-19-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shankar vs The State on 19 March, 2008 - 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