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MURUGESAN versus STATE REPRESENTED BY

High Court of Madras

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Murugesan v. State Represented by - CRL.A.(MD) No.152 of 2005 [2007] RD-TN 1123 (26 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 26/03/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

CRL.A.(MD) No.152 of 2005

Murugesan .. Appellant

vs

State Represented by

The Inspector of Police

Ilayangudi Police Station

Sivaganga District

Cr.No.229 of 2001 .. Respondent

Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the District and Sessions Judge, Sivagangai, in S.C.No.25/2004 dated 19.10.2004.

For Appellant : Mr.R.Gandhi

Amicus Curiae

For Respondent : Mr.S.P.Samuel Raj Additional Public Prosecutor :JUDGMENT



(Judgment of this Court was delivered by M.CHOCKALINGAM, J.) This appeal is preferred from the judgment of the Sessions Division, Sivaganga, in S.C.No.25/2004 whereby the appellant as A-1 along with his sister A-2 stood charged under Sec.302 read with 34 of I.P.C., tried, found guilty under Sec.302 of I.P.C. and awarded life imprisonment along with a fine of Rs.2,000/- and default sentence, while A-2 was acquitted.

2.Briefly the facts of the prosecution case can be stated thus: (a) A-1 is the brother of A-2. They are the children of one Alagar. The deceased Ramasamy, is the son of one Karuppiah, who is the brother of Alagar. There was a family property dispute between A-1 and the said Ramasamy. About 10 months before, in the sugarcane field of the Panchayat President, the deceased beat A-1. A-1 along with the mother gave a complaint to Ilayangudi Police Station on 19.10.2000, and a case was registered by P.W.13, the Head Constable, who was on duty on that day, in Crime No.571/2000 under Sections 341, 323, 325 and 307 of I.P.C. The said case was pending. While the matter stood thus, on 17.8.2001, that was just 15 days prior to the occurrence in question, 16 . sovereigns of gold jewels and Rs.3,000/- were stolen from the house of the deceased. The deceased and his family members were telling the public that it was A-1 who was responsible for that theft. On the date of occurrence, namely 17.8.2003, at about 3.15 P.M., the deceased was standing in front of his house. At that time, A-1 was armed with axe, and A-2 was armed with palmyra reaper. They went over to the house of the deceased, and A-1 uttered "You have not only beaten me, but also been adumbrating that I have committed theft". So saying, A-1 attacked him with an axe, and when he fell down, A-2 also attacked him with the reaper. After he fell down, A-1 took the iron part of the axe and stabbed him. Immediately, A-1 and A-2 went away from the place of occurrence. It was witnessed not only by P.W.1, but also by P.Ws.2 to 5. When they went nearby, they found him dead. Immediately, P.W.1 informed to P.W.6, the brother of the deceased, who came at 3.45 P.M. They proceeded to Ilayangudi Police Station, where P.W.14, the Inspector of Police, was present, to whom P.W.1 gave a complaint, Ex.P1, on the strength of which a case came to be registered in Crime No.229/2001 under Sec.302 of I.P.C. The First Information Report, Ex.P12, was sent to the Court.

(b) The Investigation was taken up by P.W.14. He proceeded to the spot, made an inspection in the presence of witnesses and prepared Ex.P2, the observation mahazar, and Ex.P13, the rough sketch. He recovered the material objects including the bloodstained earth and sample earth, under a cover of mahazar. Photographs were taken. The photos and its negatives were marked as Ex.P10 and P11 respectively. The inquest was conducted by the Investigator on the dead body of Ramasamy in the presence of witnesses and panchayatdars, and he prepared Ex.P14, the inquest report. Following the same, the dead body was sent to the Government Hospital along with a requisition, Ex.P4, for the purpose of autopsy.

(c) P.W.8, the Civil Assistant Surgeon, attached to the Government Hospital, Ilayangudi, on receipt of the said requisition, conducted autopsy on the dead body of Ramasamy and issued a postmortem certificate, Ex.P5, with his opinion that the deceased would appear to have died of injury to vital organs (brain) leading to massive haemorrhage and shock. (d) Pending the investigation, the Investigator arrested A-2 on 20.8.2001 at 12.00 Noon. She came forward to give a confessional statement, which was recorded. The admissible part of the said confession is Ex.P6, pursuant to which M.O.8, saree, was recovered under a mahazar, Ex.P7. She was sent for judicial remand. A-1 surrendered before the Court, and police custody was ordered on a memo. During the police custody, he came forward to give a confessional statement voluntarily. The admissible part is marked as Ex.P8. Consequent upon the confessional statement, he produced M.O.1, the axe, and M.O.2, which were recovered under a mahazar, Ex.P9. He was sent again for judicial remand. All the material objects recovered from the place of occurrence and from the dead body, and the material objects recovered from A-1 and A-2 pursuant to their confessional statements, were subjected to chemical analysis by the Forensic Sciences Department, which resulted in two reports namely Ex.P17, the Chemical Analyst's report, and Ex.P18, the Serologist's report. P.W.15, the Inspector of Police, took up further investigation, and on completion of investigation, he filed the final report.

3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution marched 15 witnesses and also relied on 18 exhibits and 11 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. One witness was examined on the defence side. On completion of the evidence on both sides, the trial Court heard the arguments advanced on either side and scrutinised the materials. The trial Court was of the opinion that the prosecution has proved the case beyond reasonable doubt so far as A-1 was concerned and found him guilty and awarded life imprisonment, while it acquitted A-2. Aggrieved over the judgment, A-1 has brought forth the appeal before this Court.

4.Advancing his arguments on behalf of the appellant, the learned Counsel Mr.R.Gandhi made the following submissions:

(i) In the instant case, the entire prosecution case rested upon the evidence of P.W.1. Though the prosecution examined P.Ws.1 to 5, P.Ws.2 to 5 have turned hostile, and thus, what was available for the prosecution was the evidence of P.W.1 only. The deceased was the uncle of P.W.1. Under the circumstances, if the test of careful scrutiny is applied, then, her evidence cannot be believed for the reason that according to her, there were only two injuries inflicted on the deceased; but, number of injuries are found, according to the postmortem Doctor. The injuries found on the dead body were not accounted by P.W.1.

(ii) It is highly doubtful whether Ex.P1 could have come into existence as put forth by P.W.1. According to the prosecution, the occurrence has taken place at 3.15 P.M. The Police Station is situated within 16 kilometers from the scene of occurrence. The F.I.R. has come into existence at 5.00 P.M. According to P.W.14, the Investigator, he proceeded to the scene of occurrence at 5.30 P.M.; but, according to P.W.1, she was in the Police Station at 5.30 P.M. Hence, it casts a doubt whether the Investigator has commenced the investigation even before the F.I.R. has come into existence. It will go to the root of the matter.

5.Added further the learned Counsel that the ocular testimony of P.W.1 was not corroborated by the medical evidence; that the alleged confession and the recovery of M.Os.1 and 2 from A-1 were nothing but an introduction in order to strengthen the prosecution case; that mere recovery cannot bring home the guilt of A-1; and that under the circumstances, the prosecution has miserably failed to bring home the guilt of the accused.

6.The learned Counsel would submit that even assuming that the prosecution has proved the case that it was A-1 who attacked him with the axe and caused his death, the act of the accused would not attract the penal provisions of murder; that even as per the prosecution case, on the earlier occasion, i.e., before 10 months, it was the deceased who attacked A-1, and a case was registered even for attempt to murder, and it was pending trial; that apart from that, just before 15 days prior to the occurrence, there was an incident of theft in the house of the deceased; that he was adumbrating to the public that it was A-1, who was responsible for the theft; that on the date of occurrence, even according to the prosecution, A-1 went over to the place of the deceased; that according to P.W.1, there was a wordy quarrel that preceded about 15 minutes before the occurrence; that under the circumstances, there is all possibility for A-1 getting provoked; that apart from that, due to the exchange of words at the time of quarrel that preceded, A-1 has attacked him with the axe and caused his death; that it would be quite evident that the act of A-1 was neither intentional nor deliberate nor premeditated, but only due to the sudden exchange of words and provocation, and hence, the benefit what is available under the exception to the definition of murder, has got to be given to him, and it has got to be considered by this Court.

7.The Court heard the learned Additional Public Prosecutor on the above contentions, paid its anxious consideration on the submissions made, and made a thorough scrutiny of the available materials.

8.It is not a fact in controversy that one Ramasamy, the uncle of P.W.1, was done to death in an incident that took place at 3.15 P.M. on 17.8.2003, at the place of occurrence within the jurisdiction of the respondent Police Station. Following the registration of the case at 5.00 P.M., P.W.14, the Inspector of Police, took up investigation, proceeded to the scene of occurrence, made an inquest on the dead body after following the procedural formalities, and prepared an inquest report. Thereafter, the dead body was sent to the Government Hospital for the purpose of postmortem. P.W.8, the Doctor, conducted autopsy on the dead body and gave a certificate, Ex.P5, wherein he opined that the deceased would appear to have died of injury to vital organs (brain) leading to massive haemorrhage and shock. That apart, the Doctor has also been examined as a witness, and the postmortem certificate has also been marked. The defence at no stage of the proceedings has questioned this fact that he died out of homicidal violence. Hence, without any impediment, it can be factually recorded that Ramasamy died on account of homicidal violence.

9.In order to establish the case of the prosecution that it was A-1 who attacked the deceased and caused his death, the prosecution examined five witnesses, out of whom P.W.1 is the brother, and four others are independent witnesses. It is not a case where the Investigator had not examined independent witnesses either, or the prosecution shirked its responsibility for not examining so. But, the Investigator examined four independent witnesses, who have also been examined in Court, and they have turned hostile. Hence, no fault could be attributed either to the Investigator or to the prosecution.

10.So far as P.W.1 was concerned, the deceased was her uncle. It is well settled proposition of law that merely because a witness happened to be the close relation of the deceased, the evidence of the eyewitness cannot be discarded. In the instant case, P.W.1 has given a graphic narration of the entire incident. Now, at this juncture, the learned Counsel for the appellant brought to the notice of the Court some discrepancies, which, in the opinion of this Court, are minor most, and they will not tilt the balance or take away the rigour or truth of the prosecution case. Even the ocular testimony projected by the prosecution through P.W.1, stood fully corroborated by the medical evidence through P.W.8, the Doctor, and his certificate, Ex.P5. Yet another circumstance which stood in favour of the prosecution, is the recovery of M.O.1, axe, from A- 1 pursuant to his confessional statement which was recorded in the presence of witnesses, and the witness in that regard has been examined, whose evidence remained unshaken despite the cross-examination in full.

11.The contentions put forth by the learned Counsel for the appellant that it is highly doubtful whether Ex.P1 could have come into existence as put forth by the prosecution; that P.W.1's evidence cannot be accepted; and that P.W.1 did not count the injuries properly cannot be accepted for the simple reason that at the time when A-1 was attacking the deceased with the axe and causing injuries, the reasonable conduct of a person like P.W.1, whose uncle was the deceased, would be not to count the number of attacks or the injuries, but to see the occurrence. Apart from this, P.W.1 is a womenfolk and would have been frightened and under the grip of terror and fear. Under the circumstances, the contention that the injuries were not properly accounted cannot be a reason to reject the prosecution case since her evidence otherwise inspired the confidence of the Court. Hence, all or any one of the contentions put forth by the learned Counsel for the appellant do not merit acceptance. The trial Court was perfectly correct in recording a finding that it was A-1 who attacked him with the axe and caused his instantaneous death.

12.Coming to the second line of argument that the act of A-1 would not attract the penal provisions of murder, this Court is able to see sufficient force in the contentions put forth by the learned Counsel for the appellant. In the instant case, there was an incident that took place 10 months before in which it was the deceased who attacked A-1, and a case came to be registered by the same respondent police under Sec.307 of I.P.C. The said case was also pending trial. While the matter stood thus, just 15 days prior to the occurrence, 16 . sovereigns of jewels and Rs.3,000/- were stolen from the house of the deceased, and it was the deceased who was telling the public that it was A-1 who was responsible for the theft. Under the circumstances, one would naturally get offended. At the time when the occurrence has taken place, A-1 has uttered "You have not only attacked me, but also informed to the public that I have stolen your jewels". P.W.1 has spoken to the fact that preceding the attack, there was a quarrel between A-1 and the deceased. If to be so, A-1 was naturally provoked by the earlier incident, and following the quarrel coupled with the exchange of words, he has acted. Therefore, no doubt, it would not attract the penal provisions of murder, since he has acted in the heat of exchange of words. But, at the same time, the act of A-1 would be one of culpable homicide not amounting to murder. Thus, the act of A-1 would attract the provisions of Sec.304 (Part I) of I.P.C. and not Sec.302 of I.P.C. In the instant case, it is found that A-1 has attacked him with the axe, and when he fell down, not satisfied, he took the iron part of it and attacked him on the skull, and thus caused his death. In such circumstances, this Court is of the view that awarding punishment of 10 years Rigorous Imprisonment would meet the interest of justice.

13.Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court under Sec.302 of I.P.C., are modified, and instead, A-1 is convicted under Sec.304 (Part I) of I.P.C., for which he is directed to suffer 10 years Rigorous Imprisonment. The fine amount and the default sentence imposed by the trial Court, are confirmed.

14.In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed.

Mr.R.Gandhi, appointed as Amicus Curiae, is entitled to get remuneration from the Legal Aid, Madurai.

To:

1.The District and Sessions Judge

Sivagangai

2.The Inspector of Police

Ilayangudi Police Station

Sivaganga District

Cr.No.229/2001

3.The Public Prosecutor

Madurai Bench of Madras High Court




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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