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MUTHU ASARI versus THE STATE THROUGH

High Court of Madras

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Muthu Asari v. The State through - CRIMINAL APPEAL (MD) NO.511 OF 2005 [2007] RD-TN 1505 (18 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 18/04/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

CRIMINAL APPEAL (MD) NO.511 OF 2005

Muthu Asari .. Appellant Vs.

The State through

the Inspector of Police,

Thirukkostiyur Police Station,

Crime No.38 of 2002 .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C. against the judgment of the learned Sessions Judge, Sivagangai made in S.C.No.132 of 2002, dated 30.06.2003.

For Appellant .. Mr.D.Malaichamy For Respondent .. Mr.P.N.Pandidurai, APP :JUDGMENT



(The judgment of the court was made by M.CHOCKALINGAM, J.) Challenging the judgment of the learned Sessions Judge, Sivaganga made in S.C.No.132 of 2002, the appellant/accused, who was found guilty under Section 302 IPC and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo 6 months SI, has brought forth this criminal appeal before this Court.

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

a)P.W.1 is the mother of P.W.2. P.Ws.1 and 2 are the wife and the son of the deceased Navaneedhakumar Asari, respectively. They were all residing at Aralikkottai village. P.W.3 is the wife of the accused. The accused entertained a suspicion over P.W.3 that she had illicit intimacy with the deceased for the past one year prior to the occurrence. Despite the same, the accused used to go to Aralikkottai on all the festival occasions with P.W.3 and their children. Accordingly, on 2.4.2002, when there was a festive occasion at Aralikkottai, the accused sent P.W.3 and his children there. But, he did not go. Till 3.4.2002, she did not return and hence, the accused went over there and called his wife, but she was not prepared to go back. Immediately, he beat her and went back. On 4.4.2002, the accused met P.W.2, the son of P.W.1 and handed over Ex.P.17, the letter, which was addressed to the deceased. In Ex.P.17, there was a request made to send his wife along with the children immediately. But, the same did not happen. Till 7.4.2002, P.W.3 did not come back.

b)On 7.4.2002 at about 6.15 p.m., when P.Ws.1 and 2 were just following the deceased, who was near the cattle shed, the accused came over there with aruval, pushed the deceased down and attacked him indiscriminately on his neck, chest and shoulder and on different parts of his body. The deceased fell down. This was witnessed by not only P.Ws.1 to 3, but also P.W.4. The accused fled away from the place of occurrence. P.Ws.1 and 2 went nearby and saw him dead. c)P.W.1, immediately, proceeded to the respondent police station, where P.W.8, the Sub Inspector of Police, was on duty at that time. P.W.1 gave Ex.P.1, the report to P.W.8, on the strength of which, a case came to be registered in Crime No.38 of 2002 under Section 302 IPC. Ex.P.9, the FIR was despatched to the Court.

d)P.W.11, the Inspector of Police, on receipt of the copy of the FIR, took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.10, the observation mahazar and Ex.P.15, the rough sketch. He has recovered the material objects from the place of occurrence under a cover of mahazar. He has conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.16, the inquest report. The dead body of the deceased was photographed through P.W.10. M.O.7 is the photographs and Ex.P.14 is the negative. Following the same, P.W.11 sent the dead body of the deceased to the hospital for the purpose of autopsy along with the requisition. e)P.W.5, the Doctor attached to the Government Hospital, Thirupattur, on receipt of the copy of the requisition, has conducted autopsy on the dead body of the deceased. He has issued Ex.P.4, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of the injuries sustained.

f)Pending investigation, P.W.12, the Inspector of Police, who took up further investigation of the case, arrested the accused on 8.4.2002 in the presence of the witnesses. The accused voluntarily came forward to give a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.12. Pursuant to the confessional statement, the accused produced M.O.1, aruval, which was recovered under a cover of mahazar. The accused was sent for judicial remand. P.W.13, the Inspector of Police, took up further investigation. All the material objects recovered from the place of occurrence, from the dead body of the deceased and also M.O.1, aruval recovered from the accused pursuant to the confessional statement, were subjected to chemical analysis by the Forensic Sciences Department, which resulted in two reports, namely Ex.P.7, the Chemical Analyst's report and Ex.P.8, the Serologist's report. On completion of the investigation, the Investigating Officer has filed the final report.

3.The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has examined 13 witnesses and relied on 17 exhibits and also 7 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. procedurally as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court heard the arguments advanced, scrutinized the materials available and found the accused/appellant 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 would submit that in the instant case, all the eyewitnesses are closely related to each other and also related to the deceased and hence, their evidence, if carefully scrutinized, should have been rejected by the lower court, in view of the lot of discrepancies on material particulars; that the medical evidence also did not corroborate the prosecution case; that the alleged confessional statement and the recovery of weapon of crime were nothing, but subsequent introduction in order to strengthen the prosecution case, but in vain; that if the evidence adduced by the prosecution is carefully scrutinized, the lower court should have rejected that piece of evidence; and that in the instant case, in the absence of any reliable and acceptable evidence, the lower court should not have found the appellant/accused guilty and hence, he is entitled for acquittal.

5.Advancing his further arguments, the learned counsel would submit that even assuming that the prosecution has proved the case to the extent that it was the accused, who attacked the deceased with aruval and caused his death, the act of the accused would not attract the penal provisions of murder; that in the instant case, even as per the prosecution case, the accused entertained a suspicion over the fidelity of his wife P.W.3 that she had illicit intimacy with the deceased, who is his co-brother; that there was a festive occasion on 2.4.2002 at Aralikkottai, for which the accused allowed his wife P.W.3 to attend the same, but on 3.4.2002, she did not return and when he went there and asked his wife to come back, she refused and hence, he beat P.W.3; that on 4.4.2002, the accused gave Ex.P.17, letter to Navaneedhakumar Asari through P.W.2; that even then, his wife, namely P.W.3, did not come back; that it passes in his mind that it was the deceased, who had developed illicit intimacy with his wife, has stopped her from coming there and that when it passes in his mind, he went over there and attacked the deceased and caused his death; that the act of the accused was due to suspicion, which he had over P.W.3 and his co-brother for the past one year, and also when she was not coming back, being provoked, he attacked so and hence, the act of the accused would be one culpable homicide not amounting to murder and that, it has got to be considered by this Court.

6.Heard the learned Additional Public Prosecutor on the above contentions.

7.The court has paid its anxious consideration on the submissions made.

8.It is not the fact in controversy that one Navaneedhakumar Asari was done to death in an occurrence that took at about 6.15 p.m. on 7.4.2002. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.5, the Doctor and he has issued Ex.P.4, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of the injuries sustained. The fact that the deceased died out of homicidal violence was never questioned by the appellant/accused at any stage of proceedings. Hence, without any impediment, it has got to be factually recorded that the deceased died out of homicidal violence.

9.In order to substantiate the case of the prosecution that it was the accused, who attacked the deceased with aruval M.O.1, at the time and place of occurrence, the prosecution, fortunately, had the evidence of P.Ws.1 to 3. It is true, all the three eyewitnesses are related to each other and the court is also mindful of the caution made by the settled principles of law. It is pertinent to point out that in the instant case, their evidence has got to be accepted for more reasons than one. P.W.1 is the wife of the deceased, while P.W.2 is the son of the deceased. It is also pertinent to point out that P.W.1 is none else than the sister of P.W.3, who is the wife of the accused and hence, both the accused and the deceased are co-brothers. Thus, all the eyewitnesses are closely related to both the accused and the deceased. Hence, there is no reason for P.Ws.1 and 2 to come before the court below to give false evidence against the close relative like the accused, who is none else than the sister's husband of P.W.1. Their evidence was thoroughly marshalled by the lower court and the same was accepted, since it inspired the confidence of the court and it has been rightly done. So far as the medical evidence was concerned, it stood in full corroboration with the ocular testimony.

10.Yet another circumstance in favour of the prosecution was the recovery of M.O.1, weapon of crime, pursuant to the confessional statement made by the accused, voluntarily. A witness, who has been examined in this regard, has given a clear evidence and his evidence also remains unshaken, despite cross examination. Thus, this piece of evidence would be pointing to the nexus of the accused with the crime. Under these circumstances, the contentions of the learned counsel for the appellant do not merit acceptance and hence, they have got to be rejected.

11.So far as the second line of argument as to the nature of the act of the accused is concerned, the Court has to necessarily disagree with the contention of the learned counsel for the appellant. In the instant case, the occurrence has taken place at Aralikkottai, where the deceased was living with his family, namely P.W.1 and P.W.2. The accused belonged to the nearby village. The contention put forth by the learned counsel for the appellant that even as per the the prosecution case, the accused was entertaining a suspicion over the fidelity of his wife, namely P.W.3 was true. But, it is pertinent to point out that the suspicion was entertained by him for a period of one year in the past. If he really aggrieved by such a suspicion, he should not have allowed his wife to go to Aralikkottai to attend the festive occasion, but he has permitted her to go with the children. Further, it was not the deceased, who stopped P.W.3 from going back, but it was P.W.1, who is the sister of P.W.3, informed the accused that P.W.3 would stay for a few days and then come. Added circumstance is Ex.P.17, the letter, which was not directly handed over by the accused to the deceased, but through P.W.2 and hence, what happened to that letter remains unknown. Further, in the instant case, there was no occasion for any quarrel at any point of time between the accused and the deceased. Hence, there could not be any provocation lingering in the mind of the accused. The accused had gone to Aralikkottai along with the weapon of crime, attacked the deceased indiscriminately and caused his death, which would clearly indicate that it was a pre-planned murder. In the absence of any quarrel or provocation, as envisaged in any one of the exceptions to Section 300 IPC, the act of the accused, which is evident and a pre-planned one, would attract the penal provisions of murder. Hence, the lower court was perfectly correct in applying the penal provisions of murder, finding the accused guilty as per the charge and awarding life imprisonment. This court is unable to find anything to disturb the judgment of the lower court either factually or legally.

12.In the result, the criminal appeal must fail and fails. Accordingly, it is dismissed.

vvk

To

1.The Sessions Judge,

Sivagangai.

2.The Inspector of Police,

Thirukkostiyur Police Station.

3.The Additional Public Prosecutor,

Madurai Bench of 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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