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MADASAMY ALIAS KUTTY RA versus STATE REP. BY

High Court of Madras

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Madasamy alias Kutty Ra v. State rep. by - CRL.A.No.721 of 2003 [2007] RD-TN 1263 (3 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 03/04/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

CRL.A.No.721 of 2003

Madasamy alias Kutty Raja .. Appellant

vs

State rep. by

Inspector of Police

Murappanad Police Station

Tuticorin District

Crime No.311 of 1997 .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Tuticorin, made in S.C.No.41 of 2000 dated 27.6.2002.

For Appellant : Mr.S.Jayakumar

For Respondent : Mr.P.N.Pandidurai Additional Public Prosecutor :JUDGMENT



(Judgment of this Court was delivered by M.CHOCKALINGAM, J.) The sole accused/appellant in S.C.No.41 of 2000 on the file of the Principal Sessions Division, Tuticorin, on being found guilty as per the charge of murder and awarded life imprisonment along with a fine of Rs.1,000/- and default sentence, has challenged the judgment of conviction and sentence of that Court.

2.Briefly the facts of the prosecution case can be stated thus: (a) P.W.1 is the sister of the deceased Vembu Ammal. The deceased was the daughter of Sudalaimuthu Thevar @ Duraipandi Thevar. The accused is the cousin brother of the deceased through the senior paternal uncle. There was a channel situated on the south of the house. The senior paternal uncle of the deceased was residing with his family near the channel. Sudalaimuthu was residing in the ancestral house along with the family members. The said vacant site was allotted to one Arumuga Thevar from whom Sudalaimuthu purchased for a consideration of Rs.3,000/- and raised a compound wall. The senior paternal uncle of P.W.1 was demanding for the return of the vacant site; but, Sudalaimuthu was not prepared to give it. Thus, there was a quarrel between them in the past. The appellant/accused was also demanding for the return of the same. Four days prior to the occurrence, one evening, the accused came there and was questioning the deceased about the vacant site. A quarrel arose, and he damaged the compound wall and left the place. On the date of occurrence namely 8.9.1997, at about 6.30 P.M., P.W.1 was nearing her house after finishing the field work. At that time, the accused threw a stone on the dog of P.W.1, which was witnessed by P.W.1. The said act of the accused was questioned by Vembu Ammal. Immediately, the accused took an aruval and cut Vembu Ammal on the right cheek, near the ear portion and also the chin portion, on the right shoulder, on the back and on the right wrist repeatedly. The accused immediately fled away from the place of occurrence. Vembu Ammal fell down unconscious and was also found dead. Sudalaimuthu accompanied by P.W.2, proceeded to the respondent police, where P.W.8 was the Sub Inspector of Police. Sudalaimuthu gave Ex.P1, the report, and the same was also attested by P.W.2. On the strength of Ex.P1, the report, a case came to be registered by the respondent police in Crime No.311/97 under Sec.302 of I.P.C. The express First Information Report, Ex.P10, was despatched to the Court through a Constable. (b) On receipt of the copy of the F.I.R., P.W.9, the Inspector of Police, took up investigation, proceeded to the scene of occurrence at Vasvappapuram, made an inspection in the presence of witnesses and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P11. Then, he conducted inquest on the dead body of Vembu Ammal in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P12. The dead body was sent to the Government Hospital through a Constable along with a requisition, Ex.P6, for the purpose of autopsy.

(c) P.W.5, the Civil Assistant Surgeon, attached to the Government Hospital, Srivaikuntam, on receipt of the said requisition, conducted autopsy on the dead body of Vembu Ammal and found 7 injuries. He issued a postmortem certificate, Ex.P7, with his opinion that the deceased would appear to have died of shock and haemorrhage due to multiple injuries and injury to vital organs brain and spinal cord.

(d) Pending the investigation, the Investigating Officer arrested the accused on 10.9.1997 at 3.00 P.M. near a Siva Temple. He volunteered to give a confessional statement, which was recorded. The admissible part of the same is marked as Ex.P4, pursuant to which he produced M.O.1, aruval, which was recovered under a cover of mahazar. He was also sent for judicial remand. All the material objects recovered from the place of occurrence, and from the dead body, and M.O.1, aruval, were subjected to chemical analysis by the Forensic Sciences Department which resulted in two reports, Ex.P15, the Chemical Analyst's report, and Ex.P16, the Serologist's report. P.W.10, 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 10 witnesses and also relied on 16 exhibits and 6 material objects. On completion of evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. No defence witness was examined. On completion of the evidence, the trial Court heard the arguments advanced, took the view that the prosecution has proved the case beyond reasonable doubt, found the appellant/accused guilty as per the charge and awarded life imprisonment which is the subject matter of challenge before this Court.

4.Advancing his arguments on behalf of the appellant, the learned Counsel Mr.S.Jayakumar would submit that in the instant case, P.W.1 is the only eyewitness; that though P.W.3 was examined, he turned hostile; that so far as P.W.1 was concerned, she could not have seen the occurrence at all; that the occurrence, according to the prosecution, has taken place at 18.30 hours; that according to P.W.1, she was actually witnessing the occurrence; that what is available is the uncorroborated testimony of P.W.1; that apart from that, it is highly doubtful whether P.W.1 could have seen the occurrence at all; that according to P.W.1, an information was given to P.W.2, and thereafter, he came; but, according to P.W.2, it was not so; that the informant to the police was one Sudalaimuthu, since deceased; that if really P.W.1 was present in the place of occurrence, then there was no impediment for her to accompany him to go to the Police Station; that there is no evidence available as to whether she accompanied him to the Police Station; and that under the circumstances, it casts a doubt whether P.W.1 could have been in the place of occurrence at all.

5.The learned Counsel would further submit that the prosecution has claimed that P.W.2 was the attesting witness to Ex.P1, information, alleged to have been given by Sudalaimuthu; that he could not have been an attesting witness at all; that it is highly doubtful whether Ex.P1 has come into existence as put forth by the prosecution; that it is true that Sudalaimuthu was no more, and hence, P.W.2 was examined as a person who accompanied Sudalaimuthu to the Police Station; that according to the prosecution, Ex.P1 was given by Sudalaimuthu, in which P.W.2 was an attesting witness; that a perusal of Ex.P1, the first information, would clearly reveal that P.W.2 has signed therein as a witness; but at the time of examination in Court, he has affixed his thumb impression; that it would be quite clear that P.W.2 was in the practice of affixing thumb impression and never used to sign, and thus, the signature what is found in Ex.P1 document, could not have been that of P.W.2; and that he was only a witness introduced for the purpose of the case.

6.Added further the learned Counsel that in the instant case, the prosecution much relied on the arrest and confession, pursuant to which M.O.1, aruval, the weapon of crime, has been recovered; that the only witness examined in that regard is P.W.4; that P.W.4 has categorically admitted that the accused was brought from his house; but, according to the Investigating Officer, in the presence of P.W.4 and other witness, the accused was arrested near a Siva Temple of the said place; that in such circumstances, the place of arrest is highly discrepant; and that it would be indicative of the fact that the arrest and the following confession and recovery are nothing but subsequent introduction to suit the prosecution case.

7.The learned Counsel would further add that the testimony of P.W.1 not only remained uncorroborated, but also found with inconsistencies; that number of independent witnesses were available as per Ex.P1, the report; that had it been so, there could not have been any impediment for the prosecution to examine the independent witnesses, but not done so; that this would clearly indicate that the examination of those witnesses, if done, would have gone against the prosecution; and that as far as the non-examination of the independent witnesses is concerned, an adverse inference has got to be drawn.

8.The learned Counsel took the Court to the observation mahazar and also the rough sketch and pointed out that there is a discrepancy in respect of the scene of occurrence, and thus, all would go to show that the prosecution has not proved the case beyond reasonable doubt. He would submit that the lower Court has not considered all or any one of the aspects of the matter, but has found him guilty; that under the circumstances, the judgment has got to be set aside, and the accused is entitled for acquittal in the hands of this Court.

9.The Court heard the learned Additional Public Prosecutor on the above contentions.

10.It is not a fact in controversy that the sister of P.W.1 by name Vembu Ammal, was done to death in an incident that took place on 8.9.1997 at about 6.30 P.M. in front of the house at Vasavappapuram. Following the inquest made by the Investigating Officer, P.W.9, the dead body was subjected to postmortem by P.W.5, the Doctor. The Doctor has also deposed before the Court, through whom the postmortem certificate has also been marked. According to his opinion, the deceased died of shock and haemorrhage due to the injuries to the vital organs. That apart, the fact that she died out of homicidal violence was never questioned by the appellant/accused at any stage of the proceedings. Hence, without any difficulty, it could be factually recorded so.

11.In order to substantiate the contention that it was the accused who attacked Vembu Ammal with an aruval at the time of occurrence and caused her instantaneous death, the prosecution examined two witnesses namely P.Ws.1 and 3. The first comment made by the learned Counsel for the appellant that though there were independent witnesses, no one of them was examined has got to be rejected for the simple reason that P.W.3 was an independent witness. At the time of the examination before the Court, the said witness has turned hostile, and no fault could be attributed to the prosecution. Hence, the comment that no independent witness was examined was not called for.

12.In the case on hand, the only witness available for the prosecution was that of P.W.1, who is none else than the sister of the deceased. This Court is mindful of the caution made by the principles of law and also the decision of the Apex Court that before accepting the evidence of a close relative of the deceased, the Court must apply the test of careful scrutiny. In this case, P.W.1 was the only witness who has clearly given a graphic narration of the entire incident. According to P.W.1, the accused was the cousin brother, and their house is also situated nearby, and there was a vacant site, and the said site belonged to one Arumuga Thevar, and it was purchased by her father, and thus, they were in possession, and a compound wall was also raised, and the senior paternal uncle, the father of the appellant, was actually demanding for the return of the same; but, her father was not prepared to do so, and there was a quarrel between the family. It is her further evidence that while the matter stood thus, just before four days, the accused came over there and had a quarrel with Vembu Ammal; that he returned; that on the date of occurrence, P.W.1 was returning from the field after finishing the agricultural work; that at that time, the accused threw a stone on her dog; that the act of the accused was questioned by Vembu Ammal; and that immediately, he attacked her with an aruval on different parts of the body indiscriminately and caused her instantaneous death. Despite the cross-examination in full, the defence was not successful in eliciting at least one answer either against the prosecution or in favour of the accused. It can be well stated that P.W.1's evidence, despite the exercise of the test of careful scrutiny, has inspired the confidence of the Court. That apart, the ocular testimony through P.W.1 stood fully corroborated by the medical evidence through the postmortem Doctor and the certificate.

13.The prosecution relied on yet another circumstance namely the recovery of M.O.1, aruval, from the accused on confession given by him at the time of the arrest. The learned Counsel for the appellant advanced an argument to the effect that P.W.4 the Village Administrative Officer, was the only witness as to the arrest, confession and recovery; that so far as the arrest was concerned, he has admitted at the time of cross-examination, the accused was taken from the house, and hence, it is highly doubtful whether the accused was arrested as claimed by the Investigating Officer, near a Siva Temple. At this juncture, the evidence of P.W.4, the Village Administrative Officer, is carefully scrutinized. Even at the time of the chief examination, he has stated that he did not remember the place where the accused was actually arrested. But, at the time of the cross-examination, he would say that the accused was actually brought from the house. But, a pertinent question was put to him at the time of the cross-examination whether the accused was found in the Police Station and the confession was actually recorded at the Police Station. To that suggestion, there was a thorough denial by P.W.4. P.W.4 has categorically deposed that only after the arrest was made, the confession was given voluntarily by the accused in his presence; that the same was recorded by the Investigating Officer; that consequent upon the same, the accused produced M.O.1, aruval; and that the same was recovered by the Investigator under a cover of mahazar. Under the circumstances, merely because he is unable to speak about the place of arrest, this minor discrepancy, in the opinion of this Court, cannot be a reason to reject the testimony of P.W.4, once he is able to speak about all the facts necessary in respect of the same. Hence, this part of the evidence of the prosecution as to the recovery of M.O.1, aruval, the weapon of crime, following the confession, has got to be accepted.

14.The other contention put forth by the learned Counsel for the appellant that so far as Ex.P1 is concerned, it is highly doubtful whether it has come into existence as claimed by the prosecution has got to be rejected. Admittedly, Ex.P1, the report, was given by one Sudalaimuthu, who was no more at the time of the trial. Hence, P.W.2, the attesting witness, was examined. He has categorically spoken to the fact that he accompanied Sudalaimuthu; that they went to the Police Station; that it was Sudalaimuthu who has given the complaint, which is Ex.P1; and that he has also witnessed the same by putting his signature in Ex.P1. It is true that at the time when he was examined before the Court, he has affixed his thumb impression. From the evidence, it could be seen that he was 73 years old at the time when he was examined before the Court. At the time of the chief examination also, he has categorically stated that it was he who put the signature after Sudalaimuthu gave the complaint and after it was recorded by the Sub Inspector of Police, and it is Ex.P1. Thus, this part of the evidence, in no way, will be helpful to the defence. Hence, all or any of the contentions put forth by the learned Counsel for the appellant as stated above, do not carry any merit in favour of the defence.

15.In this case, it was the accused who went over to the spot and threw a stone on the dog of P.W.1, and when questioned by Vembu Ammal, he attacked her with the aruval indiscriminately and caused her instantaneous death, which, in the considered opinion of this Court, cannot, but be termed only as murder. The lower Court was perfectly correct in applying the provisions of Sec.302 of I.P.C. and awarding life imprisonment along with the fine and default sentence. This Court is unable to notice anything to disturb the same either factually or legally.

16.In the result, this criminal appeal must fail and fails. Accordingly, it is dismissed confirming the judgment of the lower Court. nsv

To:

1.The Principal Sessions Judge

Tuticorin.

2.The Inspector of Police

Murappanad Police Station

Tuticorin District

(Crime No.311 of 1997)

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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