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SUNDARAVEL versus STATE THROUGH

High Court of Madras

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Sundaravel v. State through - Crl.A.(MD) No.402 of 2005 [2007] RD-TN 1378 (10 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 10/04/2007

CORAM:

THE HON'BLE MR. JUSTICE M.CHOCKALINGAM

and

THE HON'BLE MR. JUSTICE P.R.SHIVAKUMAR

z

Crl.A.(MD) No.402 of 2005

Sundaravel .. Appellant vs.

State through

the Inspector of Police,

Moolakkaraipatti Police Station,

Crime No.118 of 2003. .. Respondent Criminal Appeal filed under Section 374 Cr.P.C against the Judgment of conviction and sentence dated 27.07.2005 made in S.C.No.283 of 2004 on the file of the Principal District and Sessions Court, Tirunelveli. For appellant : Mr.V.Kathirvelu

For respondent : Mr.P.N.Pandidurai,

Addl.Public Prosecutor

:JUDGMENT



(Judgment of the Court was made by M.CHOCKALINGAM, J) Challenging the judgment of the Court of Sessions Division, Tirunelveli dated 27.7.2005 made in S.C.No.283 of 2004, the sole accused/appellant, who stood charged, tried under Sections 449, 302 and 309 of IPC, found guilty as per the charges and awarded ten years R.I. and to pay a fine of Rs.500/-, in default, to undergo two years R.I. under Sec.449 of IPC, life imprisonment and to pay a fine of Rs.1,000/- in default, to undergo three years R.I. under Sec.302 of IPC and one year S.I. under Sec.309 of IPC, has brought-forth this appeal.

2. The short facts necessary for the disposal of the appeal can be stated thus:

(a) The deceased Sugasini is the daughter of P.W.2. PW.1 is the younger brother of the deceased. The husband of PW.2 was employed in a canteen attached to Aravind Hospital, Palayamkottai. During the relevant time, the deceased Sugasini was doing her second year B.Sc in Saran Thakkar College and PW.1 was doing 8th Standard. They used to go together from their house to the respective educational institutions by bus. The accused's house was situated in the opposite side and he used to often tease her when the deceased used to go to her college and the same was informed by the deceased and PW.1 to PW.2, who in turn, informed to a neighbour, PW.3. He, in turn, advised them to go to police station but PW.2 did not do so. Two days prior to the occurrence, mother of the accused came to the house of PW.2 and asked PW.2's consent to give her daughter in marriage to the accused. PW.2 was agreeable but the deceased was not agreeable. One day prior to the occurrence, at about 7.00 p.m. on 9.12.2003, while PW.1 and the deceased were reading in their house and PW.2 was not available, the accused came over there and knocked the doors but they did not open the doors. The accused got angry and uttered that he would see to her. On the date of occurrence i.e. on 10.12.2003, at about 7.00 a.m., while PW.2 was standing in front of her house brushing her teeth and talking about the agricultural operations, the deceased Sugasini was in the kitchen. The accused came there with an aruval, entered into the kitchen, asked the deceased, "did you love me", for which, the deceased replied she could not love him. When the answer came in negative, he uttered, "you would not be allowed to live" on saying so, he attacked her with an aruval on her neck. When she was about to move, cut her tuft and also attacked on her neck and on different parts of the body. PW.1 and PW.2 witnessed the occurrence and immediately, they found Sugasini died. The accused sped away from the scene of occurrence immediately. (b) PW.1 along with one Chinnathurai proceeded to the respondent police station where PW.7 Head Constable was on duty at about 8.00 a.m. on 10.12.2003. PW.1 gave an oral complaint to PW.7 and the same was reduced to writing, which was marked as Ex.P.1. On the strength of Ex.P.1, a case was registered in Crime No.118/2003 u/s.302 and 309 of IPC. Ex.P.2, F.I.R. was despatched to the Court. At about 8.45 a.m. an intimation was received from the Government Hospital, Palayamkottai that the accused was admitted as inpatient in the hospital. PW.12, Doctor, attached to the Government Hospital, Palayamkottai gave treatment to the accused.

(c) PW.16 Inspector of Police of the said circle took up investigation. He proceeded to the scene of occurrence, made an inspection and prepared an Observation Mahazar Ex.P.17 in the presence of witnesses and prepared a rough sketch Ex.P.25. He made an arrangement for taking photographs and photos and negatives were marked as MO.4 Series. Thereafter, he conducted an inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared an Inquest Report Ex.P.24. A requisition was forwarded for the purpose of conduction post-mortem. He recovered blood stained earth MO.5 and sample earth MO.6 under cover of Mahazar Ex.P.18. (d) On receipt of the requisition for conducting autopsy, PW.11 Doctor conducted autopsy on the dead body of the deceased and he found injuries as described in the Post-Mortem Certificate issued by him and the same was marked as Ex.P.15.

(e) After taking treatment, the accused was discharged by PW.8 Doctor on 20.12.2003. On the same day, accused was arrested in the presence of witnesses at about 6.00 p.m.,. He voluntarily gave a confessional statement and the same was recorded in the presence of witnesses and the admissible portion of the confession was marked as Ex.P.19. Pursuant to the confession, the accused produced an aruval MO.1, and a letter written by him Ex.P.21 and the same were recovered in the presence of witnesses under the cover of Mahazar Ex.P.20. All the material Objects recovered from the place of occurrence and from the dead body were subjected to chemical analysis and the same were resulted in two reports viz., Chemical Analysis Report Ex.P.8 and Serological Report Ex.P.9. (f) On completion of the investigation, the Investigating Officer file a final report against the accused and the case was committed to the Court of Sessions and necessary charges were framed against the accused. (3) In order to substantiate the charges levelled against the accused, the prosecution examined 16 witnesses and marked 27 exhibits and 6 MOs. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 Crl.P.C. found in the evidence of the prosecution witnesses. He denied them as false. No defence witness was examined. (4) After hearing the arguments advanced by both sides, the trial Judge found the appellant/accused guilty as per the charges and awarded life imprisonment as stated above. Hence, the appeal at the instance of the appellant/accused.

(5) While advancing his arguments, learned counsel for the appellant would submit the following submissions:

(a) In the instant case, PW.1 and PW.2 have been examined as eye- witnesses. It is an admitted case of the prosecution that there was a love affair between the deceased and the accused and the accused was a graduate and the deceased was actually doing her course of graduation and fell in love and both were loving together for a period of three years. When she refused, there was a request made by the mother of the accused, to PW.2, mother of the deceased to give her daughter in marriage to the accused, and she was willing for the marriage and the marriage was to have been settled, at that time, the deceased came forward with a refusal answer and hence, the accused got provoked out of the same.

(b) PW.1, who is a child witness, could not have seen the occurrence at all. He was aged about 13 years old at the time of occurrence. He was a school going boy and apart from that he was a tutored witness. (c) According to the prosecution, the accused, after the occurrence, consumed poison. The case was registered under Sections 302 and 309 of IPC. Even before registering the case, the accused should have consumed poison as he was loving the deceased for the past three years. According to PW.2, she did not know about the consumption of poison by the accused. Thus, it is evident that PW.2 could not have witnessed the occurrence. Naturally, the F.I.R. has come into existence belatedly and anti-time was given and the F.I.R. reached the Judicial Magistrate Court belatedly but the entries have been made as if it has reached the Court earlier.

(d) The investigator, who could not found the actual assailant, in view of the love affair between the accused and the deceased, came forward to implicate the accused and has roped him in the case. Hence, the prosecution has not proved its case beyond all reasonable doubts. (e) The learned counsel would further add that it is an admitted fact that there was love affair between the accused and the deceased for the past three years and there were occasions in which they had met and each other wanted to marry. Just two days prior to the occurrence, it was the mother of the accused who went to the house of PW.2, mother of the deceased, and got her consent for their marriage and they also agreed for the marriage. While the matter stood thus, when he came to her house and when the accused asked the deceased, she refused to give her consent for the marriage and thus, he was provoked. Apart from that, a letter was recovered by the investigator at the time of investigation, which was marked as Ex.P.21 and a reading of the same would clearly indicate that they were loving each other. After some time, he entertained a suspicion that she was loving another person. Under the circumstances, he became anxious, excited and he was shocked whether she was loving another person. Immediately, he went to the house of the deceased when PW.2 was brushing her teeth in front of the house and PW.1 was reading in the house and the deceased was in the kitchen. Under the circumstances, he asked her whether she would love him. There was an answer in refusal. Thereby, he got provoked and acted so. Under the circumstances, the act of the accused would not attract the penal provisions of murder and the act of the accused would only amount to culpable homicide not amounting to murder, which has got to be considered by this Court.

(6) The Court heard the learned Additional Public Prosecutor on the above contentions. The Court paid its anxious consideration on the above submissions made and had a thorough scrutiny of the materials available. (7) It is not in controversy that one Sugasini, the daughter of PW.2 was done to death in the incident that took place at about 7.00 a.m. on 10.12.2003 at her residence. PW.2 is the mother. PW.1 is the brother of the deceased. Both PW.1 and PW.2 have been examined as eye-witnesses. According to the prosecution, the occurrence was taken place inside the kitchen of PW.2's house. The investigator had gone over there, made an inspection and prepared an Observation Mahazar and also Rough Sketch. The contents of the Observation Mahazar and Rough Sketch were not disputed and thus, it would be quite clear that the occurrence had taken place inside the kitchen of PW.2's house at about 7.00 a.m. on 10.12.2003. It is quite natural for PW.2, mother of the deceased was to be very well available. According to PW.2, she was standing in front of the house, while brushing her teeth and PW.1 was reading in the house. At that time, the accused with the weapon of crime got into the house and asked her whether she would love him. When he got a refusal answer from the deceased, he cut her indiscriminately. When he began to cut her, she was about to move but he cut her on tuft and on other parts of the body indiscriminately and she met instantaneous death.

8. Now, the contention put-forth by the learned counsel for the appellant that PW.1 and PW.2 could not have seen the occurrence and PW.1 is a child witness and his evidence should have been rejected by the lower Court for more than one reasons.

9. In this regard, the lower Court has tested the mental maturity of PW.1 and satisfied, rightly too. PW.1 was 13 years old and he was doing 8th standard. It was PW.1, who used to accompany the deceased while going to school. There were occasions for PW.1 joining with the deceased in reporting the incidents in which the accused was teasing his sister to mother. There was also an incident that took place on the previous night to the occurrence. On the previous night i.e. at about 7.00 p.m., when PW.1 was reading along with the deceased, the accused came over there and knocked the doors of the house of the deceased but they did not open. The accused uttering that he would see to her, went away from there. The evidence of PW.1 has been carefully considered by the trial Court and accepted the same.

10. Insofar as PW.2 is concerned, she was very well available in front of the house brushing her teeth and PW.1 was reading in the house. As could be seen from the sketch, the house is a small one and at the time of occurrence, it was quite natural for PW.1 and PW.2 to be in the house. Merely, because the eye-witnesses are related to the deceased, their evidence can not be discorded. By applying the test of careful scrutiny, the evidence of PW.1 and PW.2 has got to be accepted.

11. Apart from that, the medical evidence put-forth through the Post- Mortem Certificate, stood in full corroboration to the ocular testimony.

12. The lower Court was perfectly correct in arriving at a conclusion that it was the accused who entered into the house at the time of occurrence and caused instantaneous death of the deceased. It is pertinent to point out that immediately after the occurrence, the accused has also consumed the poison. He was given treatment in the Hospital. He was discharged from the Hospital on 20.12.2003. On his arrest, he gave a confessional statement and pursuant to the confession, the accused produced an Aruval MO.1, the weapon of the crime. These are all pointing to the nexus of the accused with the crime.

13. Insofar as PW.15, Village Menial, has been examined and spoken to the effect that within 15 minutes after the occurrence was over, the police came to the spot, is of no significance for the simple reason that PW.1 proceeded to the police station along with one Chinnathurai and gave a complaint, which was reduced to writing by the Head Constable PW.7 and the complaint was marked as Ex.P.1. The Village Menial could not have given information as put-forth by the prosecution. PW.1 and PW.2 have categorically deposed that it was the accused who committed the offence of murder. Their evidence has inspired the confidence of the Court. The prosecution has got sufficient evidence to give a finding that it was the accused who cut the deceased with aruval and caused instantaneous death and the trial court recorded so.

14. Insofar as the second line of argument that even assuming that the act of the accused has been proved by the prosecution, it would only amount to culpable homicide not amounting to murder. Even though the argument of the learned counsel, may be at first sight, attractive, it will not stand the scrutiny of law. In the instant case, there was no even one evidence to show that at any point of time, the deceased loved the accused. It is a unilateral love by the accused. A letter was written by him, which was marked as Ex.P.21, which was not addressed to anybody. It was written by the accused, it was kept by him and recovered by the investigator at the time of the investigation. Now, it is pertinent to point out that, true, it is, that the mother of the accused went over to the house of the deceased and asked PW.2 to give her daughter to the accused in marriage and PW.2 was amenable but the deceased was not willing to marry him. In such circumstances, love is not a matter of compulsion. Once the deceased was not prepared to love him and marry him, there is no question of compelling her. In the instant case, when the deceased took the aruval MO.1, proceeded to the house of the deceased, with a determination that if she gave an answer in positive nothing to follow and if an answer in negative, he wanted to finish of her. He got into the house of the deceased and asked her whether she could love him and she gave an answer in negative. Immediately, he cut her indiscriminately and caused her death instantaneously. In the instant case, merely, because of the denial of the love, one can not expect to take the life of the other side. Now, at this stage, the act of the accused can not be but in the circumstances of the case, it could be termed only as an act of murder warranting punishment for the offence of murder.

15. For the reasons stated above, in the opinion of the Court, the judgment of the lower Court can not be disturbed either factually or legally and hence, the same is sustained. The criminal appeal fails and the same is dismissed.

To

1.The Principal District and

Sessions Court, Tirunelveli.

2.Inspector of Police,

Moolakkaraipatti Police Station.

3.The Additional Public Prosecutor,

Madurai Bench of

the Madras High Court,

Madurai.


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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