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Murugan v. Inspector of Police - Crl.A.No.423 of 2005  RD-TN 144 (10 January 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN and
THE HON'BLE MR.JUSTICE M.JEYAPAUL
Criminal Appeal No.423 of 2005
Murugan ...Appellant vs.
Inspector of Police,
Kumaralingam Police Station,
(Cr. No.141 of 2003) ...Respondent Criminal Appeal against the Judgment and conviction dated 18.10.2004 made in S.C.No.169 of 2004 on the file of the Principal District and Sessions Judge, Coimbatore. For appellant : Mr.S.Parthasarathy
For respondent : Mr.N.R.Elango,
Addl. Public Prosecutor
(Judgment of the court was delivered by M.JEYAPAUL,J.) Accused, who was convicted for the offence under section 302 IPC and sentenced to undergo life imprisonment together with fine of Rs.2000/= with default clause, prefers the present appeal.
2. The charge as against the appellant is that the accused Murugan, who used to pick up quarrel with his wife Perumal, having suspected her fidelity, attacked her with billhook at about 11.30 am on 30.12.2003 at Venkatasamy Gounder's field at Neelambur with an intention to cause her death and thereby committed an offence punishable under section 302 IPC.
3. The case, in brief, of the prosecution, as unfolded by the witnesses examined on the side of prosecution, is as follows:-
Velusamy, PW1 is the brother and Subban, PW5 is the father of the deceased Perumal. The deceased Perumal was married to the accused Murugan about twenty years prior to the occurrence. PW1 and PW5 have spoken to the fact that the accused, who was disinclined to do any job, suspected the fidelity of his wife Perumal and used to take liquor and beat her. Karupathal, PW6, a neighbour has stated that there was a quarrel in the morning at about 8.00 am on the fateful day between the accused and the deceased on account of suspicion of fidelity entertained by the accused as against his wife Perumal. She has also stated that the accused went along with the deceased armed with aruval picking up quarrel with his wife. PW1 has deposed before the court that he also saw his sister going along with her husband, the accused herein for the purpose of collecting firewood. Thangaraj, PW2 is the ocular witness in this case. It is his version before the Trial Court that on 30.12.2003, at about 11.00 am, when he was in his field, he found the accused going along with his wife picking up quarrel with her. The accused also found armed with a billhook. Within a short while, he heard the distressing noise from a woman and when he looked at the side from where the noise emanated, he found the accused delivering a cut on the neck of the deceased Perumal. Thereafter, he came down to the village and informed Velusamy, PW1 about the occurrence. Subburaj, PW8 saw the accused returning all alone with a blood stained shirt and a billhook in his hand at about 11.30 am on 30.12.2003 when he was proceeding to Neelambur from Reddiyapalayam.
4. Velusamy, PW1 proceeded to the Kumaralingam Police Station at about 2.15 pm on 30.12.2003 and gave a statement, Ex.P1 to the Sub Inspector of Police, PW11, who registered a case in Crime No.141 of 2003 for offence under section 302 IPC. PW11 prepared the printed FIR, Ex.P9 and despatched the same to the learned Judicial Magistrate I, Udumalpet.
5. The Inspector of Police, K.Vellaisamy, PW12, having received a copy of the FIR at about 2.45 pm on 30.12.2003, took up the investigation. He rushed to the scene of occurrence at about 3.45 pm and having observed the scene of occurrence, prepared observation mahazar, Ex.P7 in the presence of the Village Administrative Officer, PW10. He also drew rough sketch, Ex.P10 reflecting the scene of occurrence. He took photographs of the scene of occurrence and the same were marked as Ex.P8 series. He held inquest between 4.45 pm and 7.45 pm on the dead body of Perumal and prepared inquest report, Ex.P11. He examined the witnesses and recorded their statements.
6. Dr.Sathish Babu, PW9, commenced post mortem examination on the dead body of Perumal at 11.30 am on 31.12.2003. He found the following injuries and other symptoms on the dead body of Perumal:-
1. An incised wound 2cm x 1cm x muscle deep right shoulder.
2. Lacerated wound 4x2x3.5 cm bone depth. Situated 5 cms above left clavicle 1 cm from midline laterally upto medial border of left sterno mastoid 7 cm from lower border of mandible on dissection - internal jugular vein cut left internal carotid artery partially cut with clots around the injured vessels, muscle over the anterior aspect of neck upto cervical spine cut.
3. Abrasion 2x1 cm over lateral aspect of left clavicle, eye was closed. Mouth closed tongue inside mouth 7/8 / 7/7.
Opening of thorax normal No fracture ribs. Heart 300 gms. Clotted blood present lungs right 450 left 400 gms. C/s pale. Abdomen liver 1200 gms c/s pale stomach 50 mg brown colour fluid present spleen 120 gm c/s pale kidneys 80 gm each c/s pale. Intestine distented with gas, uterus empty pelvis normal. Spine normal opening of scalp normal membranes intact. Brain 1300 gm pale. Hyoid bone intact."
In the post mortem certificate, Ex.P3, the Doctor, PW9, opined that the deceased appear to have died of shock and haemorrhage due to lacerated injury over the left side of neck 24 to 30 hours prior to the post mortem examination.
7. Durairasu, PW7 was the President of Madathukulam Town Panchayat. At about 7.30 am on 30.12.2003, when he was at his house, the accused came down to his house and informed that he murdered his wife Perumal. He passed on the information to the Inspector of Police, Madathukulam Police Station. The Village Administrative Officer, Kaliappan, PW10, also arrived at the house of PW7. At about 8.15 am on the same day, the Inspector of Police went to the house of Durairasu, PW7 and arrested the accused at about 8.30 am. The accused gave a voluntary disclosure statement. On the basis of the admissible portion in the disclosure statement of the accused, dhoti, M.O.2 and shirt, M.O.3 were recovered under relevant seizure mahazar, Ex.P5 from the accused in the presence of the Village Administrative Officer. Thereafter, PW12 proceeded along with the accused and recovered the billhook, M.O.1 under the cover of mahazar, Ex.P6 from underneath of a bridge near Reddiapalayam burial ground. The accused was remanded to judicial custody and the Material Objects were sent to the learned Judicial Magistrate I, Udumalpet. Thereafter, PW12 recovered saree, M.O.9, jacket, M.O.10, petticoat, M.O.11 and 'Thaali', M.O.12 under Form 95. The learned Judicial Magistrate sent the Material Objects for chemical examination under the covering letter, Ex.P14 on the basis of the requisition, Ex.P13 submitted by PW12. Biology Report, Ex.P15 and Serology Reports, Exs.P16 and P17 were received from the Chemical Examiner. PW12, having completed the investigation laid final report as against the accused under section 302 IPC.
8. The accused totally denied his involvement in the occurrence when he was questioned under section 313 Cr.P.C bringing to his notice the incriminating circumstances spoken to by the witnesses examined on the side of the prosecution.
9. Neither oral nor documentary evidence was let in on the side of the defence.
10. The learned Trial Judge, having relied upon the ocular testimony of Thangaraj, PW2, in the background of the extra judicial confession given to PW7 and the medical evidence available on record, has come to the conclusion that the appellant alone has committed the murder of Perumal.
11. Learned counsel for the appellant would vehemently submit that Thangaraj, PW2 could not have witnessed the occurrence as he had clearly stated during the course of cross examination that he proceeded to the scene of occurrence only after the distressing call completely subsided. He would further submit that PW1 and PW5 are interested witnesses in this case and the evidence of PW8 is quite artificial and the same does not inspire judicial confidence and the arrest and recovery spoken to by PW7 and PW10 do not appear to be realistic. At any rate, he would submit that the offence alleged to have been committed does not fall under the mischief of Section 302 IPC.
12. Learned Additional Public Prosecutor would submit that the ocular testimony, extra judicial confession, arrest and recovery and the medical evidence would clinchingly establish beyond any doubt that the accused had murdered his wife due to previous enmity spoken to by the brother and father of the deceased.
13. Velusamy, PW1 and Subban, PW5 have spoken to the frequent quarrel the accused had with his wife Perumal suspecting her fidelity. There is no reason to disbelieve their testimony, inspite of the fact that they are closely related to the deceased. Nothing has been suggested to them to impeach their testimony.
14. Thangaraj, PW2 has a land nearby the scene of occurrence. He has categorically stated that he saw the accused going along with his wife armed with a billhook. PW1 also has stated that his sister went along with the accused for the purpose of collecting firewood. The neighbour Karupathal, PW6 lends corroboration to the aforesaid version. She has found the accused picking up quarrel with the deceased in the morning at about 8.00 am. Thereafter, the accused had left alongwith his wife for collecting firewood. The only ocular witness examined in this case viz., PW2 has come out with a natural version that he found the accused delivering a cut on the neck of the deceased when he looked at the side from where the distress call emanated from a woman. Inspite of the searching cross examination, the evidence of Thangaraj, PW2 could not be impeached by the defence. There is no reason for PW2 to come and depose ill of the accused. PW2 is found to be an independent witness. We place full reliance upon the testimony of PW2. Subburaj, PW8 has also witnessed the accused coming along with a blood stained shirt armed with a billhook. His testimony is not tainted with artificiality. The evidence of Durairasu, PW7, a very reputed witness in this case would state that the accused came down to his place on the next day at about 7.00 am and confessed that he caused the death of his wife. There is no reason for the President of a Town Panchayat to come and depose against the interest of the accused. The Village Administrative Officer, PW10, would disclose that he was also present at the time when the accused was handed over by PW7 to the Inspector of Police, PW12. The extra judicial confession given to PW7 lends corroboration to the ocular testimony of PW2.
15. Coming to the medical testimony, it is found that the deceased had received an incised wound on the right shoulder and a lacerated wound on the left clavicle apart from an abrasion found on the left clavicle. The aforesaid medical testimony is found synchronised with the ocular version of PW2.
16. We find that there is no reason to disbelieve the arrest of the accused and the recovery of the material objects at the instance of the accused based on the admissible portion in the disclosure statement given by the accused in the presence of the Village Administrative Officer, PW10. The dhoti, shirt and billhook recovered at the instance of the accused based on the disclosure statement given by him were found with human blood as per the Serology Report, Ex.P17. No explanation has been offered by the accused as to how the shirt and the dhoti of the accused recovered at the time of arrest were found with human blood. The totality of the evidence available on record referred to above would clinchingly establish beyond reasonable doubt that it was only the accused who has caused the death of his wife Perumal.
17. The learned counsel for the appellant would submit that the occurrence had taken place on account of the quarrel which preceded the occurrence as per the case of the prosecution and therefore, the conviction under section 302 IPC recorded by the Trial Court is not sustainable.
18. We find that there is some force in the said submission made by the learned counsel for the appellant. The neighbour Karupathal, PW6 has categorically stated that the accused set off from the house armed with a billhook picking up quarrel with his wife. As per the version of Thangaraj, PW2, who saw the accused along with the deceased just prior to the occurrence, would state that both of them were found quarreling with each other when he spotted them proceeding to collect firewood. PW1 has spoken to the fact that the accused, suspecting the fidelity of his wife, used to pick up quarrel often. The very fact that the deceased had chosen to accompany the accused who was armed with a lethal weapon would demonstrate that there was no premeditation in the mind of the accused to do away with the life of the deceased. The quarrel had originated all of a sudden in the house itself and the same had continued till the occurrence was completed. The accused, who was armed with a deadly weapon, should have, in all probabilities, attacked the deceased in the heat of passion on account of the sudden fight which engulfed both of them at the scene of occurrence proper. But, we find, in the background of the nature and situs of injuries found on the deceased, that the accused should have intended to do away with the life of the accused in the heat of passion. We find that the homicidal violence committed by the accused falls under exception 4 to section 300 IPC. We, therefore, set aside the order of conviction recorded by the Trial Court for the offence punishable under section 302 IPC and instead we convict the accused under section 304 Part I IPC and sentence him to undergo seven years rigorous imprisonment. The fine amount imposed on the accused for the offence under section 302 IPC by the Trial Court is maintained for the offence under section 304 Part I IPC.
19. The criminal appeal is disposed of accordingly. Ssk.
1. The Principal Sessions Judge,
2. The District Collector,
3. The Director General of Police,
4. The Public Prosecutor,
High Court, Chennai.
5. The Superintendent,
Central Prison, Coimbatore.
6. The Inspector of Police,
Kumaralingam Police Station,
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