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RAMALINGAM versus STATE REP. BY INSPECTOR OF POLICE

High Court of Madras

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Ramalingam v. State Rep. by Inspector of Police - C.A.No.999 of 1995 [2003] RD-TN 1035 (28 November 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 28/11/2003

CORAM

THE HON'BLE MR. JUSTICE P. SATHASIVAM

AND

THE HON'BLE MR. JUSTICE M. THANIKACHALAM

C.A.No.999 of 1995

Ramalingam ..Appellant. -Vs-

State Rep. by Inspector of Police,

Nagoor, Nagai Quide Millath Dt.

(Cr.No.343/93 on the file of the

Thittacherry Police Station) ..Respondent. Appeal filed under Section 374 Cr.P.C. against the judgment of conviction and sentence passed by the learned Sessions Judge, Nagapattinam, Nagai Quide Millath District by his judgment dated 1.11.1995 made in S.C.No.112 of 1994.

For Appellant : Mr. K. Srinivasan For Respondent : Mr. V. Arul,

Govt. Advocate (Crl.Side) :J U D G M E N T



(Judgment of the Court was delivered by M.THANIKACHALAM, J.) The accused in S.C.No.112 of 1994 on the file of the Sessions Judge, Nagapattinam, is the appellant.

2. Upon the complaint preferred by the respondent police, alleging that the accused should be convicted for the offences under Sections 3 02 and 326 I.P.C., since he had committed the murder of his wife, Pappathi @ Marimuthu on 7.9.93 at about 10.30 a.m., intentionally by stabbing her with a Chisel and that he had also inflicted grievous injuries to P.W.1, the sister of Pappathi @ Marimuthu, the learned Sessions Judge, satisfying himself, to proceed further, on the basis of the materials, produced before him, framed charges and questioned the accused, regarding the plea of guilty, for which he pleaded not guilty.

3. The prosecution to satisfy the Court, that the final report is based on truth and the person, who committed the offence, should be dealt with properly, examined 14 witnesses, seeking buttress from 17 documents and 18 material objects. A meticulous scanning and proper appreciation of the evidence, brought to surface, the guilt of the accused, according to the conclusion of the learned trial Judge, and in this view, he convicted and sentenced the accused to undergo life imprisonment, for the offence under Section 302 I.P.C. and 5 years R.I. for the offence proved under Section 326 I.P.C.

4. The prosecution case in a nutshell: (a) The accused/appellant is the husband of Pappathi @ Marimuthu and her sister is Kamala (P.W.1). At the time of the incident, Pappathi and the accused were living at Thirumarugal Village, though they belong to some other village. Thiru Paneerselvam (P.W.2) and Thiru Ganesan (P.W.8) are their neighbours. The accused was not living happily with his wife and he used to pick up quarrel with her, when she was residing at Keezha Thanjavur, which is known to P.W.3 also. Even after they have migrated to Thirumarugal, the accused addicted to drinks, tortured the wife, which is known to P.Ws.1 and 2. (b) On 7.9.1993 at about 10.30 a.m., there was some dispute between the accused and his wife, since she refused to help him in the dayto-day work or because of the fact that PW1 requested for his child to be taken to her village, for some period, which was not accepted. Aggrieved by the conduct of the deceased and PW1, the accused attacked his wife, by using M.O.1, thereby caused injuries on her left shoulder and right collared bone. On seeing this incident, when PW1 attempted to save her sister, questioning the conduct of the accused, she was also not spared. The accused stabbed PW1 also over her right arm, as well as left side of the neck. This incident was witnessed by PW2, who is the neighbour and P.W.8, who is living on the southern side of the accused's house. Thiru Paneerselvam (P.W.2), Thiru Ganesan (P.W.8) and others made an arrangement, for the treatment of the injured Kamala alone, since Pappathi died at the spot itself. (c) Dr. A.R. Udayasankaran (P.W.5) gave treatment to P.W.1, when she was brought to the hospital, and noticed the injuries, for which he issued Ex.P.4, wound certificate. The doctor, P.W.6 who was on duty, on the same day also, gave treatment to her. The fact that P.W.1 was admitted in the hospital, was informed to the out post police station, attached with the hospital and on information from the said police station, P.W.10 rushed to the hospital, examined P.W.1 at about 2.0 0 p.m. in the presence of P.W.6. Her statement was recorded as Ex.P.1, in which the doctor (P.W.6.) also signed. On the basis of Ex.P.1, P.W.10 registered a case in Cr.No.343/93 under Sections 324 and 302 I.P.C.

(d) The Inspector of Police, P.W.14 on receipt of the information from P.W.10, went to the police station and after obtaining a copy of the F.I.R., went to Thirumarugal at about 4.00 p.m., where the occurrence took place and verified the scene of crime, in and around. He prepared Ex.P.2, observation mahazar in the presence of P.W.4 and one Ramasamy, in addition to preparation of sketch, Ex.P.16. At about 4.3 0 p.m., P.W.14 seized M.Os.2 to 7 under Ex.P.3, in the presence of the same witnesses. Between 5.00 and 8.00 p.m., in continuation of the investigation, P.W.14 conducted inquest, in the presence of the Panchayatdars and examined the witnesses, also and the result is Ex.P.17. Thereafter, the body of Pappathi was sent for postmortem, to ascertain the cause of death.

(e) P.W.7 Dr. Sanghamitra, on receipt of the requisition and on identification of the body, conducted autopsy over the body of Pappathi at about 12.00 p.m. on 8.9.93, which revealed the following external and internal injuries.

1. An elliptical stab wound 3 cm in length 1 c.m. wide and its centre present over lateral side of man ubrium sterm on the right below the clavicle. On dissection and examination of the wound muscles at the site of the wound seen served back of fracture been in the first rib and the fracture extending upto the manubrium stem. On further careful dissection and examination Rt internal thoracic vessels and first right intercostal artery found injured and cut.

2. Another elliptical wound of same dimension over the mid third of upper scapular region on the left. On probing the wound the wound extends upwards and medially about 2 c.m in depth.

Analysing the effect of external as well as internal injuries, the doctor was of the opinion, that the deceased died due to shock and hemorrhage, because of the injuries sustained by her and to that effect, the doctor issued Ex.P.5, postmortem certificate.

(f) P.W.14 in continuation of the investigation, examined the injured, who was unfortunately attacked on 8.3.93, as well as examined other witnesses also and recorded their statements. On 14.9.93, on information, he arrested the accused at 1.00 p.m. at Thiruvallur Bus stand in the presence of P.W.9 and one Selvaraj. On examination, the accused volunteered to give confession and the admissible portion is Ex.P.6. In pursuance of the confession, the accused took P.W.14 and other witnesses to Thirumarugal Village, where he identified the place of concealment of the weapon, took out and handed over the same (M.O.1), which was recovered under Ex.P.8, in the presence of the same witnesses in addition to some receipts (M.O.8 series) under Ex.P.7. The material objects seized during the investigation also sent for chemical examination, for which P.W.13 lent support. After the conclusion of the investigation, P.W.14 was of the opinion, that the accused had not only committed the murder of his wife, but also caused grievous hurt to P.W.1. Therefore, in this view, he laid the final report, before the Court concerned, seeking appropriate punishment.

(g) After committal, the learned Sessions Judge, Nagapattinam, at the culmination of the trial, came to the conclusion that the oral evidence of P.Ws.1, 2 and 8 proved not only the motive, but also the actual incident. Thus, believing the oral evidence of P.Ws.1, 2, 8 and others, which had the support of the circumstantial evidence also, he found the accused guilty under Sections 302 and 326 I.P.C., for which he slapped the sentences as said supra, which are under challenge before us.

5. Heard the learned counsel for the appellant, Mr. K. Srinivasan and the learned Government Advocate (Crl. side).

6. The learned counsel for the appellant submits, that P.W.1 could not be the author of Ex.P.1, since the averments therein, were not fully supported by her, but unfortunately, this was not taken note of by the trial Court. He further points out, that the motive alleged is also not proved, since there was no uniformity in this regard. It is the further submission of the learned counsel, that even as per the oral evidence of P.W.1, she was unconscious for four days or so, and regained conscious thereafter and therefore, question of her giving detailed statement in Ex.P.1, should be ruled out.

7. It is the further contention of the counsel that according to the prosecution, some weapon was used to cause injuries to the deceased as well as P.W.1, whereas, the doctors have opined, different kind of injuries, which would belie the prosecution case. He further points out, that the arrest and recovery are not proved and the witnesses examined to prove the same, being the stock witness of the police, reliance could not be placed upon them. The counsel for the appellant, denying the incident, as narrated by the prosecution, would submit that on 7.9.93, because of the suspicion between the sisters, there was a quarrel between them and in that quarrel, P.W.1 would have attacked the deceased for which, the accused could not be held responsible.

8. The learned Government Advocate (Crl. side) would submit, that no reason could be attributed, to ignore the convincing oral evidence of P.Ws.1, 2 & 8 and the different motive spoken by P.W.1, deviating from Ex.P.1, would not disprove the prosecution case, the fact being, even in the absence of motive, if the occurrence is proved, the accused could be convicted, well. In this view, he supports the reasoning and findings of the trial Court.

9. According to the prosecution, the occurrence took place on 7.9.19 93 at about 10.30 a.m. just in front of the houses of the accused and P.W.2, Paneerselvam. The fact, that P.W.1 was present at the time of the occurrence, is not in dispute and in fact, it could not be disputed, because of the fact, she also sustained injuries. P.W.2 admittedly being the neighbour, his presence could not be doubted, unless it is established otherwise. P.W.8 also belongs to the same place, and he is living on the southern side of the accused's house, which is also noted in Ex.P.16 - rough sketch. From the cross examination of P.Ws.2 and 8, we find no reason, even to doubt their testimony. Both the witnesses are independent in nature and they have no animosity of any kind, against the accused and no affection with the deceased or P.W.1. In this view, in our considered opinion, they shine as natural witnesses, unbiased and their testimony are worthy of credence. Therefore, if they have spoken about the incident, and the involvement of the accused, using M.O.1, causing injuries to the deceased, as well as P.W.1, then we should act upon their testimony, to fix the culpability of the accused. Before scanning the oral evidence of P.Ws.2 and 8 supported by P.W.1, now let us take Ex.P.1, since its origin and genesis are questioned, or at least an attempt is made to shadow the same, thereby creating some doubts, in the minds of the court, in order to have a gap, for the escape of the accused.

10. It is not in dispute that immediately after P.W.1 sustained injuries, she was admitted in the hospital, on the same day. The hospital authorities informed the same to the Sub Inspector of Police, as seen from Ex.P.9. The Sub Inspector of Police (P.W.10), on receipt of the information, rushed to the hospital, examined P.W.1, that too in the presence of P.W.6, ascertaining her capability, capacity and orientation, to give statement. P.W.1 narrated the motive as well as the incident, which took place on 7.9.93 at about 10.30 a.m. and the same was reduced into writing as Ex.P.1.

11. The first attack, upon this document by the learned counsel for the appellant is, that P.W.1 would not have furnished the information contained in Ex.P.1 and the reason assigned is, she was unconscious. For this, aid is sought from the oral testimony of P.W.1. P.W.1 during the examination in chief, would state, that after sustaining injuries, she became unconscious and only at hospital, she regained conscious. Therefore, as per defence, it is clear that when she had given the statement, she was not unconscious. But during the cross examination, some snap answers were elicited, as if she was unconscious through out, that too, for four days, which is not the case and it is well proved by the doctor's evidence. When a question was put to her, about her conscious, she said after four days, she was all right. She would further state, that she was not even able to open her eyes, since she was under sedation. On the basis of these materials, Ex.P.1 was attacked. While assessing the evidence of a witness, it is the cardinal principle, that the answers given by the said witness hither and thither alone should not be considered, ignoring the other part of the evidence. A proper appreciation of the evidence should be, taking of the cumulative effect of the evidence, and not the isolated answer given, at the time of the cross examination. In this view, if we read the entire evidence of P.W.1, it is clear to our mind, that she was not unconscious throughout and if at all, she must have been unconscious, during some interval that too, when she was under sedation. That would not mean that she would not have furnished the information, as in Ex.P.1. In this regard, it is pertinent to note the doctor's evidence.

12. P.W.5 is the doctor, who admitted P.W.11 at the first instance. He testified about the condition of P.W.1 and would state that when he examined P.W.1, she was conscious. The suggestion thrown to P.W.5 was denied and we do find no reason to accept the suggestion. Ex. P.4 which came into being, without the influence of anybody, would say that the patient was conscious. Fitting in with the recital alone, P.W.5 has given evidence regarding the condition of P.W.1. In the presence of P.W.6 alone, as spoken by P.W.10, Ex.P.1 statement was recorded. P.W.6 also certified, about the condition of P.W.1. He was certain and denied the unconsciousness of P.W.1. That is why he has given evidence, that Kamala was conscious and capable of giving statement and in that way, she gave this statement also. The doctor had signed in Ex.P.1., but not stated, that the injured was conscious, oriented, etc. Taking advantage of the same, the attempt made by the learned counsel for the appellant, to create doubt upon Ex.P.1, failed to inspire our confidence and we are unable to persuade ourselves also to succumb to the case of the defence. In this view, we conclude that only on the information furnished by P.W.1, Ex.P.1 ought to have been recorded and the said document cannot be labelled as tainted one, prepared for the purpose of this case, incorporating necessary materials, to rope in the accused, due to enmity.

13. The second attack aimed upon Ex.P.1, to create doubt is, that the motive described therein was not spoken by P.W.1. Therefore, according the learned counsel for the appellant, the information available in Ex.P.1 would not have been furnished by P.W.1. We are unable to agree. It is the case of the prosecution, that the deceased and accused were often quarreling with each other and to avoid certain problems, it appears they have migrated to Thirumarugal. Therefore, the motive for the subsequent events, could not be a single motive alone, though one portion alone is stated under Ex.P.1. When P.W.1 was examined, due to ignorance or otherwise, forgetting the fact that what she had stated in Ex.P.1, has given some other motive, probably that being the immediate cause of action, for the occurrence. Therefore, on the ground that P.W.1 has not corroborated the motive part of Ex.P.1 alone, in our view, would not make Ex.P1 as a concocted document. In this view, we are constrained to reject the defence. The attempt made on behalf of the appellant, to create doubt upon Ex.P.1, is to ignore this document, since it contains more or less all the necessary particulars regarding the incident, including the presence of the witnesses. We are unable to persuade ourselves, to accept the contention of the learned counsel for the appellant, and conclude that Ex.P.1 is the genuine complaint, given by P.W.1, recorded by P.W.10 sincerely, on which basis, the investigation has been initiated.

14. The incident took place at about 10.30 a.m. on 7.9.1993 and immediately, P.W.1 was rushed to the hospital and on information, P.W.10 also reached the hospital, recorded the statement at about 2.00 p.m. There is no material, even by way of suggestion, that somebody intervened between the time of incident and the time of recording the statement. The position being so, it should be the normal inference that P.W.1 would have narrated the incident as it is, as seen by her, as suffered by her. Ex.P.1 does contain all the details to crown all these things; as spoken by P.W.1, as seen from the intrinsic evidence available in Ex.P.1, it reached the house of the Judicial Magistrate at about 6.05 p.m. Considering the distance between the place of incident, place of police station, etc., we find no delay of any kind, in initiating the proceedings for the injuries suffered and in this view, we would rule out the possibility of deliberation and inclusion of false information in Ex.P.1. In this view, if the averments in Ex. P.1, though not substantial evidence, are substantiated by the eye witnesses, then it is impossible for the accused, to escape from the clutches of law.

15. The learned counsel, in order to probabalise the defence, thereby to create doubt upon the prosecution case, invited our attention to the injuries sustained by the deceased and P.W.1. As seen from Ex.P.5, postmortem certificate, the deceased sustained stab wound, elliptical in shape, 3 cm in length, 1cm wide. The weapon used for causing these injuries is M.O.1, chisel. It is the case of the prosecution, that by using the same weapon, P.W.1 was also assaulted. Ex.P.4 would reveal, that P.W.1 sustained incised wound. Because of the different nature of injuries, the learned counsel for the appellant, submitted that the accused would not have used the same weapon to cause injuries to P.W.1, as well as the deceased and if at all the injuries sustained by the deceased and P.W.1 ought to have been, inflicted by different weapons, that too in the fighting between the deceased and P.W.1 . We are unable to agree. A chisel could also cause incised wounds, depending upon its handling. The size of the wound, whether it is incised or stab wound, as the case may be, more or less one and the same. When the ocular evidence, which we are going to discuss infra, are unassailable, the inconsistency available in the medical evidence, need not be given much weight. In this view, this defence is also liable to be rejected and the same is rejected.

16. The accused is the maternal uncle's son of P.W.1. By implicating the accused in the murder of her sister, P.W.1 is not going to gain anything. It is suggested to P.W.1, that the deceased suspected that P.W.1 was having illicit intimacy with the accused and therefore, she shifted the residence, from Keezha Thanjavur to Thriumarugal. No other motive is alleged prior to the incident against P.W.1. If the alleged case projected on behalf of the accused is true, then P.W.1 should support the accused and should not have gone against the accused. It is further suggested that the accused refused to marry P.W.1, since he was under the impression that P.W.1 was the cause for the death of wife. This motive is suggested, to elicit, why P.W.1 has given false evidence against her sister's husband. To have support for this defence, we find nothing on record and the materials available on record, act against the suggestion. Immediately after the incident, as narrated in Ex.P.1. P.W.1 has painted the entire occurrence and the involvement of the accused. Therefore, the suggestion thrown later on, as aforementioned, would not have the effect of erasing the evidence of P.W.1, which is inspiring and convincing.

17. For eschewing the oral evidence of P.W.1, the learned counsel for the appellant pointed out, some of the omissions or contradictions, as the case may be, and they are deviating from the motive projected in Ex.P.1, then the stay of P.W.1 prior to the incident, in the house of Atthachi i.e. P.W.2's house and the non disclosure of present motive or immediate cause of action, spoken for the occurrence. As aforementioned, though in Ex,.P.1 some other motive is projected, P.W.1 thought it fit, to say the immediate cause of action, probably, and in this view, we ignore the deviation, the fact being, even in the absence of proof of motive, in the case of direct evidence available, the offence could be proved legally. P.W.1 has stated, that she took bed during the night hours, in the house of Atthachi and returned to her sister's house, only in the early morning. But, P.W.2 would state, that on 6.9.1993 night, P.W.1 did not take bed, in his house. This contradiction has nothing to do with the incident and the contradiction elicited as above, has no direct bearing. In our considered view, it would not impeach the credibility of P.W.1. Hence on the basis of the contradictions or omissions, unbelieving the evidence of P.W.1 is not possible.

18. P.W.1 has stated that prior to the incident, on 7.9.93, the accused sought the help of his wife to lift a log from a pond, for which she refused. It is the further case of P.W.1, that on refusal by his wife, to help the accused, he attempted to assault his wife and apprehending danger, she ran away from the house. She has further deposed, that the accused took the chisel from his house and stabbed upon the deceased Pappathi @ Marimuthu, over her shoulder and right collared bone. On seeing this incident, according to P.W.1, she questioned the conduct of the accused, and at that time, the accused uttering "cd;ida[k; Fj;Jfpnwd; ghh;@. stabbed her by the same weapon, not only over the right fore arm, but also over the left side of the neck. The fact that P.W.1 sustained injuries, as spoken by her,is well corroborated by medical evidence. The evidence given by P.W.1, implicating the accused is well supported by an independent witness, Paneerselvam, who is the neighbour.

19. The contention of the learned counsel that P.W.2 would not have been available at the time of the incident, is unacceptable to us, since he has testified about his presence on 7.9.1993, as he had not gone for work. He has categorically deposed, about the noise heard in the house of the accused, then the deceased coming out from the house, as well as P.W.1, in addition, the accused with chisel in his hand. He has further spoken, that unexpectedly (to him probably), the accused stabbed Pappathi over her left shoulder as well as over the right collared bone. It is the further case of P.W.2, that when the act of the accused was questioned by P.W.1, the accused stabbed her over the right wrist, as well as over the left neck. P.W.2, because of the sudden development, was upset and regaining sense, according to him, he attempted to catch the accused, but he ran away. He has further deposed, when the accused ran from the scene of crime, Ganesan also came there, who is examined as P.W.8.

20. The learned counsel for the appellant would submit, that even as per the case of P.W.2, Ganesan came to the scene of crime only after the accused left the place and therefore, he would not have seen the incident. It is not the case of P.W.2, that Ganesan has not witnessed the incident and he has spoken about his seeing Ganesan, probably after the accused left. That does not mean, Ganesan would not have seen the incident. In this view, taking the snap answer given by P.W.2, it is not desirable to ignore the oral evidence of P.W.8.

21. P.W.8 is living on the southern side of the accused's house and he has no animosity against the accused. In this view, his evidence should be viewed as natural one, since untainted. P.W.8 would state, that he had seen P.W.1 number of times, he used to come to her sister's house. But it is not the case of P.W.1. Therefore, a submission was made, that his evidence should be ignored, which we are unable to agree. During the cross examination, he admits that as Kalasi, he used to go to his job by 7.00 a.m. and used to return only at 6.00 p.m. But, he has given evidence, as if he had seen the incident at 10.30 a.m. The job undertaken by P.W.8 is not one confined to the place and there is no bar to come to the house. It is the case of P.W.8 that on 7.9.1993, he came to his house for taking breakfast and there is nothing strange. Therefore, the contention of the learned counsel for the appellant, that P.W.8 would not have witnessed the incident also, should be rejected.

22. P.W.8 has spoken about the presence of P.W.1 on 7.9.93 at 10.30 p.m. He has further deposed, that from the house of the accused, P.W.1 and Pappathi came out followed by the accused. He has also pointed out, that at that time, P.W.2 and his w present before their house. According to P.W.8, the accused, who followed the deceased and P.W.1 with chisel attacked Pappathi over her neck and when she fell down, once again, attacked her, over her right collared bone, which is the evidence of P.Ws.1 & 2 also. P.W.8 further says, that when P.W.1 attempted to prevent the act of the accused, she was stabbed by the accused, using the same chisel, over her right wrist, then left neck also. He has further deposed, that P.W.1 was taken to the hospital by one Palanivelu and therefore, he left the place. He has also identified the weapon used by the accused, for stabbing Pappathi and P. W.1. The suggestion thrown to P.W.8, that P.W.1 and the deceased had free fight, does not draw any support and therefore, the same should be ignored. The above evidence given by P.Ws.2 & 8 stand as a rock and unassailable and it deserves our acceptance, since we find nothing strange in their testimony or any improbability or unnaturalness.

23. The trial Court considering the evidence of P.Ws.1, 2 & 8 have come to an unerring conclusion, which deserves acceptance. This is further supported by the medical evidence also. P.W.5, Dr. Udayakumar, who treated P.W.1. had noticed an incised wound on the left upper back paravertibal region and also an incised wound on the right fore arm, which is in accordance with the evidence given by P.Ws.1, 2 & 8. P.W.7 at the time of the autopsy over the body of Pappathi, had noticed an elliptical stab wound just on the right clavicle and another elliptical wound on the upper scapular region on the left side. This is also in accordance with the evidence given by P.Ws.1, 2 & 8. Thus in our view, the medical evidence available on record also, fully corroborates the oral evidence of ocular witnesses, thereby exposing the guilt of the accused, to the Court and not creating any shade of doubt. When the doctor had spoken about the nature of injury and opined about the cause of death of Pappathi, that she would have died of shock and hemorrhage, not challenged, as seen from the cross examination. Therefore, if we read the evidence of P.Ws.1, 2 & 8 coupled with the medical evidence, the only irresistible conclusion that could be drawn is, the accused alone was the cause for the stab injuries, sustained by Pappathi, which terminated her life prematurely and in this view, the accused should be held responsible.

24. Dr.U.R.Udayasankar, who examined P.W.1, considering the effect of the injuries, opined that the injuries sustained by P.W.1, are grievous in nature. His evidence so given, is not challenged, as seen from the cross examination. However, the court felt some more explanation is required to fix the grievous hurt and in that view, the Court had elicited an answer from the doctor under what circumstances, these injuries could be described as grievous. The doctor has stated that since the first injury caused damage to the lungs, and the muscles are cut, since there is no possibility of reunion to the original stage, he was of the opinion that the injuries are grievous in nature. This is not challenged. Under Section 320 I.P.C., any hurt which endangers life, also would come under the heading 'grievous hurt', in addition to destruction or permanent impairing of the powers of any member or joint. In this view, as seen from the evidence of doctor, we conclude that the injuries sustained by P.W.1 in the hands of the accused are grievous hurts, attracting Section 326 I.P.C., as concluded by the trial Court.

25. Dr. Sangamitra opined in Ex.P.5 that the deceased died of shock and hemorrhage, because of the injuries sustained by her. The information given by the doctor and the reasons assigned in the postmortem certificate are not under challenge and therefore, it should be held that the injuries inflicted by the accused alone, were the case for the death.

26. As rightly urged by the learned Additional Public Prosecutor, the recovery of the weapon on the basis of the confession given by the accused and the fact, human blood Group A was detected in the weapon also, would lend support to certain extent in strengthening the case of the prosecution. A doubt has been raised by the learned counsel for the appellant, regarding the detection of human blood A group in the chisel, to certain extent rightly also. It is the case of the prosecution, that the deceased used the same weapon to stab P.W.1. It is not the case of the prosecution that both the sisters had the same group of blood viz., 'A' Group. Therefore, it is not known, how 'A' Group blood alone was detected in the chisel, used by the accused to stab Pappathi as well as P.W.1. Whatever may be the detection of the blood in the chisel, the fact remains, M.O.1 chisel was used to stab P.W.1, and the deceased. Since it was identified correctly by the ocular witnesses, it should be accepted even sidelining the Serologist's report.

27. The investigating officer, P.W.14 would state that the accused was absconding from 7.9.1993 and he was arrested only on 14.9.1993. If the case of the accused, that his wife was murdered, in the fight between the sisters, is to be accepted, then what would be the normal conduct of the accused, is the question. He ought to have participated in the subsequent events and in that case, the question of absconding would not arise. When the investigating officer has spoken about the non availability of the accused i.e. absconding, it is not challenged.

28. When the accused was examined under Section 313 Cr.P.C., in order to explain the incriminating circumstances, found in the prosecution witnesses, he would admit about the presence of P.W.1, but denied the rest of the portion of the evidence, sometimes exhibiting his ignorance. He has filed a statement, wherein also he has not explained about his absconding and the arrest. Except generally alleging that since he refused to marry P.W.1, and in order to grab the property also, a false case was foisted, with the aid of the the political party. The non explanation regarding the arrest also could be taken into consideration, which would prove the conduct of the accused after the death of wife, as well as sister in law, sustaining injuries. In this view, the absconding takes important role, leading to arrest and recovery.

29. According to P.W.14 on 14.9.1993, the accused was arrested by him at 12.30 p.m. on information, in the presence of P.W.9 and one Selvaraj. He has further deposed that the accused gave confession statement voluntarily (Ex.P.6) and in pursuance of the same, from the roof of his house, M.O.8 as well as M.O.9 were recovered under Ex.P.7. It is the case of P.W.14, that at about 5.00 p.m., M.O.1 was recovered at the instance of the accused, under Ex.P.8 in the presence of P.W.9 and one Selvaraj. This weapon alone was identified by all the eye witnesses.

30. The accused is a carpenter by profession and this weapon viz., Chisel should be available with him. Therefore, there is every possibility to say, that the accused aggravated by the conduct of the deceased, would have taken the chisel, and attacked the wife and her sister. The oral evidence of P.W.4 is fully corroborated by the oral evidence of P.W.9 also, in all aspects. Describing P.W.9, as contended on behalf of the appellant, as stock witness, his testimony could not be disbelieved. Thus, the investigation revealed about the actual involvement of the accused, using M.O.1 and we find no laches or lapses on the part of the investigating officer also, in fixing accused and in collecting the materials, in proper way. The trial Judge properly considering the evidence of P.Ws.1, 2 & 8 legally, had come to an unerring conclusion, holding, that the offence under Sections 302 and 326 I.P.C. against the accused are proved beyond reasonable doubt, which should receive affirmation from us.

31. We find no merit in the appeal and no case is also made out, to interfere with the finding of the trial Court, which is cogent, convincing, based on facts and law, deserving our appreciation.

32. The result therefore is, the appeal is dismissed as devoid of merits, confirming the conviction and sentence under Sections 302 and 3 26 I.P.C. The accused who is said to be on bail from 3.8.1999 is directed to surrender before the trial Court and the trial Court is also directed to take appropriate steps to secure the accused, to undergo the remaining period of the sentence.

Index : Yes

Website Yes

kv

To

1. The Judicial Magistrate No.II,

Nagapattinam

2. -do- thro' the Chief Judicial Magistrate, Nagapattinam.

3. The Sessions Judge,

Nagapattinam.

4. The Superintendent, Central Prison,

Cuddalore

5. The Superintendent, Central Prison,

Trichy.

6. The Public Prosecutor, Madras.

7. The Inspector of Police, Tiruchirapalli P.S. Nagai District.

8. The District Collector, Nagai Quaide Milleth District. 9. The Director General of Police, Mylapore, Chennai-4. 


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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