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PANDIARAJAN versus STATE REPRESENTED BY

High Court of Madras

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Pandiarajan v. State represented by - Criminal Appeal (MD) No.525 of 2005 [2007] RD-TN 1598 (24 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 24/04/2007

CORAM

THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM

AND

THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR

Criminal Appeal (MD) No.525 of 2005

Pandiarajan .. Appellant

Vs

State represented by

Inspector of Police,

Thuckalay Police Station,

Kanyakumari District.

Crime No.1285 of 2002 .. Respondent Appeal filed under Section 374 of Cr.P.C., to set aside the judgment of the Sessions Court of Kanyakumari District at Nagercoil dated 27.4.2005 passed in S.C.No.20/2004.

For Appellant : Mr.R.Thangavel

For Respondent : Mr.N.Senthurpandian Addl.Public Prosecutor :JUDGMENT



(Judgment of the Court was delivered by M.CHOCKALINGAM,J.) The sole accused in S.C.No.20/2004 on the file of the learned Sessions Judge, Kanyakumari District at Nagercoil, on being found guilty as per the charges under Sections 324 (2 counts)and 302 of IPC and awarded to pay a fine of Rs.100/- each in default, to undergo rigorous imprisonment for a period of one month for each count under Section 324 of IPC and life imprisonment with a fine and default sentence for the offence under Section 302 of IPC, has brought forth this appeal before this Court.

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

(a)P.Ws.1 and 2 are sisters and they are the daughters of Backiyam, since the deceased. The accused is the husband of P.W.1. After the marriage, Backiyam, the deceased gave Rs.15,000/- to the accused and P.W.1 to start a business. Accordingly, they took the amount and went over to Nasik and started a business and that they could not flourish since the accused was a drunkard and was indulging in all illegal activities, and came back to their native place, Tharavilai. The accused used to often demand money for the purpose of starting a shop. On 8.11.2002, at about 12.00 p.m., as usual, the accused was demanding money to P.W.1 to which P.W.1 was telling that she had no money. Immediately, the accused took a knife and stabbed P.W.1 on her right forearm. When P.W.2 intervened, the accused attacked P.W.2 on her wrist. When the deceased Backiyam questioned the accused, the accused also attacked her on different parts of the body and fled away from the place of occurrence. (b)P.Ws.1 and 2 and the deceased were taken to Thuckalay Government Hospital, where P.W.5, the doctor, attached to the said hospital gave the initial treatment to the deceased and gave an intimation to the respondent Police under Ex.P.6. He also gave Ex.P.7-the Accident Register with regard to the deceased. They were directed to go to Nagercoil Government Hospital for better treatment. Accordingly, P.Ws.1 and 2 along with the deceased Backiyam proceeded to the said hospital, where P.W.6, the doctor, attached to the said hospital, was on duty. He gave further treatment to the deceased and gave Ex.P.8-the Accident Register. P.W.6, the doctor, also medically examined P.Ws.1 and 2 and gave Exs.P.9 and 10-the Accident Registers respectively. (c)On receipt of the intimation, P.W.10, the Head Constable, attached to the respondent Police, proceeded to the hospital and recorded the statement of the deceased Backiyam, under Ex.P.1. He, then returned to the Police Station and registered a case in Crime No.1285/2002 under Sections 324 and 506(2) of IPC and the Express F.I.R., Ex.P.15, was despatched to the Court. P.W.13, the Sub Inspector of Police, took up investigation, proceeded to the spot, made an inspection in the presence of witnesses and prepared Ex.P.2-the Observation Mahazar and also Exs.P. 26 and 28, the rough sketches respectively. P.W.11, the photographer, went to the spot, and took the photos in respect of the place of occurrence and the photo copies are marked as Ex.P.16 series and the negatives are marked as Ex.P.17 series. On 9.11.2002, despite treatment, the deceased died and the death intimation under Ex.P.11, was sent to the respondent police. On intimation, P.W.13, the Sub Inspector of Police, altered the case to one under Section 302 of IPC and the Express Report, Ex.P.27, was despatched to the Court. (d)P.W.14, the Inspector of Police, took up further investigation, went to the hospital, conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared Ex.P.29-the Inquest Report. Following the inquest, P.W.14, sent a requisition under Ex.P.13 to P.W.8, the doctor, attached to Nagercoil Government Hospital, to conduct autopsy on the dead body of the deceased. P.W.8, the doctor, attached to the said hospital, on receipt of the requisition, conducted the postmortem on the dead body of the deceased and gave Ex.P.14-the Postmortem Certificate, wherein he has opined that the deceased would appear to have died out of shock and haemorrhage due to aortic injury.

(e)Meanwhile, the accused surrendered before the learned Judicial Magistrate, Karur, on 17.2.2003. On the basis of a requisition, an order was passed by the learned Judicial Magistrate, Karur, for taking the accused to police custody. The accused came forward to give a confessional statement in the presence of witnesses, the admissible part of which is marked as Ex.P.4, pursuant to which M.O.1-knife, was recovered under a cover of Mahazar. The accused was sent for judicial custody. All the material objects recovered from the place of occurrence and from the dead body of the deceased and the M.O.1- knife, recovered pursuant to the confessional statement of the accused, were all subjected to chemical analysis by the Forensic Sciences Department, which resulted in two reports, viz., Exs.P.20 and 21-the Chemical Analyst Report and the Serologist Report respectively. On completion of investigation, the investigating officer filed the final report before the concerned Court.

3.The case was committed to Court of Sessions. Necessary charges were framed. In order to substantiate its case, the prosecution marched 14 witnesses and also relied upon 29 exhibits and 6 material objects.

4.On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied them as false. No defence witness was examined and the Trial Court heard the arguments advanced on either side, took the view that the prosecution has proved its case beyond reasonable doubt, found the accused guilty as per the charges under Sections 324 and 302 IPC and awarded the sentence as stated supra, which is the subject matter of challenge before this Court in this appeal.

5.Advancing his arguments on behalf of the appellant/accused, Mr.R.Thangavel, learned Counsel, inter-alia made the following submissions: (a)In the instant case, the prosecution has not proved the case beyond reasonable doubt. The occurrence is alleged to have taken place at 12.00 p.m. on 8.11.2002. At the time of occurrence, according to the prosecution, not only P.Ws.1 and 2 and the deceased were present, but also, the father of P.Ws.1 and 2 and the owner of the house were present. But, the prosecution has not examined the father of P.Ws.1 and 2 and the owner of the house for the reasons best known.

(b)Added further, the learned counsel that in the instant case, both the deceased and also P.Ws.1 and 2 were taken to Nagercoil Government Hospital and the Accident Register copies in that regard were filed, viz., Ex.P.7-the Accident Register copy of the deceased issued by P.W.5, the doctor, attached to Thuckalay Government Hospital and Ex.P.8-the Accident Register copy of the deceased issued by P.W.6, the doctor, attached to Nagercoil Government Hospital, Ex.P.9-the Accident Register copy of P.W.1 and Ex.P.10-the Accident Register copy of P.W.2 issued by P.W.6, the doctor, attached to the said hospital. The learned counsel stated that a perusal of the same would cast a doubt on the prosecution case. Insofar as Ex.P.6, it was the statement made by the deceased and recorded by the doctor, wherein the place of occurrence is mentioned as Tharavilai, and it does not state that the place of occurrence was the house of the deceased.

(c)Insofar as the Accident Register copies of P.Ws.1 and 2, a perusal of the same would indicate that P.W.1 has stated that she was attacked by a known person, while P.W.2 has stated that she was attacked by an unknown person. Thus, when both put together, it casts a doubt whether the occurrence has taken place as put forth by the prosecution. Added further, the learned counsel that no motive has been either brought forth or proved by the prosecution. (d)Advancing his further arguments, the learned counsel submitted that the case was originally registered under Sections 324 and 506(2) of IPC by P.W.10, the Head Constable, attached to the respondent Police Station and in the F.I.R., Ex.P.15, the date of registration is mentioned as 8.12.2002. But, according to the prosecution, the occurrence has taken place on 8.11.2002. This fact also casts a doubt on the prosecution case. The defence plea of the accused was that there was a scuffle at the time of transaction in question and in that process, both the deceased and the P.Ws.1 and 2 sustained injuries and following the same, the deceased died and not due to the act of the accused. But, the Trial Court has not considered this aspect, both factually and legally. Hence, the accused is entitled for acquittal in the hands of this Court.

6.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 materials available.

7.It is not a fact in controversy that one Backiyam, the mother of P.Ws.1 and 2, following an incident that took place on 8.11.2002 at about 12.00 p.m., sustained injuries and was taken to Thuckalay Government Hospital and thereafter, she was taken to Nagercoil Government Hospital, where she was given treatment by P.W.6, the doctor, attached to the said hospital and on 9.11.2002, despite treatment, the deceased died. Originally, the case was registered under Sections 324 and 506(2) of IPC by P.W.10, the Head Constable, attached to the respondent Police Station. On the death of the deceased Backiyam, the case was altered to one under Section 302 of IPC. P.W.13, the Sub Inspector of Police, took up investigation, conducted inquest on the dead body of the deceased and gave Ex.P.29-the Inquest Report and the dead body was subjected to postmortem by P.W.8, the doctor, attached to Nagercoil Government Hospital, who gave Ex.P.14-the Postmortem Certificate, wherein he has opined that the deceased would appear to have died out of shock and haemorrhage due to aortic injury. Thus, the fact that the deceased died out of homicidal violence was never questioned by the accused at any stage of the proceedings and hence, without any impediment, it can be factually recorded so.

8.What was contended by the defence before the Trial Court and equally here also is that there was a scuffle between the accused and P.Ws.1 and 2 and the deceased in which in order to frighten the P.Ws.1 and 2 and the deceased, the accused took a knife. At that time, the deceased and P.Ws.1 and 2 tried to snatch the knife from him. The knife fell on the deceased and she sustained injuries. A suggestion was put to P.W.8, the doctor, who conducted the postmortem and he has denied also. The injuries that were sustained by the deceased are noted by him and that there were number of injuries found and as a result of which, the deceased died. What was contended by the defence as stated above, is that the scuffle could have caused for such injury or the injury could have been a reason for the death. The Trial Court is perfect in rejecting such a plea which remains to be accepted. Thus, the prosecution has proved that the deceased died due to the injuries sustained by her and that too, by homicidal violence.

9.In order to substantiate that it was the accused who stabbed the deceased at the time and place of occurrence, P.Ws.1 and 2 were examined. It is fortunate for the prosecution that P.Ws.1 and 2 have spoken in one voice about the occurrence. It is true that P.Ws.1 and 2 are sisters and it has to be remembered that P.W.1 is the wife of the accused. Further, P.Ws.1 and 2 are also not only eyewitnesses, but also injured witnesses. In a given case like this, where an eyewitness happened to be an injured witness, his evidence cannot be discarded unless and until a strong circumstance is noticed by the Court or a reason is brought about by the defence. In the instant case, both the eyewitnesses have been attacked by the accused and they sustained simple injuries and were taken to the hospital and treated by P.W.6, the doctor, attached to Nagercoil Government Hospital who gave Exs.P. 9 and 10, the Accident Registers respectively, in that regard. All would go to show that the place and time of occurrence have also been spoken to by P.Ws.1 and 2.

10.It is true that in Ex.P.9, P.W.1 has made a statement that she was stabbed by a known person. P.W.2 has given a statement that she was attacked by an unknown person in Ex.P.2. At the time of chief examination, P.W.6, the doctor, attached to Nagercoil Government Hospital, has categorically stated that P.Ws.1 and 2 have stated to him that they were attacked by a known person. But, a perusal of Ex.P.10, the Accident Register of P.W.2, would reveal that she was attacked by an unknown person. P.W.6, the doctor, was not questioned about the statement made by P.W.2 at the time of cross examination. Hence, that doubt was also clarified by the prosecution. It was the deceased who originally gave a statement to P.W.10, the Head Constable, on the strength of which a case came to be registered under Sections 324 and 506(2) of IPC and the deceased has narrated the entire incident and on 9.11.2002, despite treatment, she died. Thus, the Trial Court is perfectly correct in placing reliance on the statement given by the deceased. The prosecution had not only the statement of the deceased on the basis of which a case came to be registered, but also the evidence of P.Ws.1 and 2 whose evidence has inspired the confidence of this Court. The medical evidence adduced by the prosecution in this regard, also stood in full corroboration with the ocular testimony projected through P.Ws.1 and 2.

11.Yet another circumstance, in favour of the prosecution, was the confessional statement given by the accused. The admissible part is marked as Ex.P.4, pursuant to which M.O.1-knife, the weapon of crime, was recovered, which in the opinion of the Court is a strong circumstance pointing to the nexus between the accused and the crime. Thus, the prosecution has sufficient evidence to bring home the guilt of the accused and the Trial Court has rightly relied on and accepted the said evidence.

12.The second line of contention put forth by the learned counsel for the appellant that the act of the accused, even if it is taken as proved, would not attract the penal provision of murder, cannot be accepted even for a moment. The defence plea was that there was a scuffle. But, from the factual position it would be very clear that there was no scuffle at the time of occurrence. But, it was the act committed by the accused armed with a knife, who originally attacked P.W.1 on her refusal to give money and when P.W.2 intervened, she was also attacked by him. When the same was questioned by the deceased Backiyam, the accused stabbed her and as a direct consequence, she died. This act of the accused cannot but be termed as murder.

13.Hence, the Trial Court is perfectly correct in recording the finding that the accused has committed offences under Sections 324 and 302 of IPC and awarding the punishments referred to above. This Court is unable to notice anything to disturb the judgment of the Trial Court either factually or legally and hence, the appeal must fail and fails.

14.The judgment of conviction and sentence imposed by the Trial Court is sustained. Accordingly, the criminal appeal is dismissed.

ap

To

1.The Sessions Judge, Kanyakumari District,

2.The Principal Sessions Judge, Kanyakumari District. 3.The Inspector of Police,

Thuckalay Police Station,

Kanyakumari District. 4. The Additional Public Prosecutor,


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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