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DAMODARAN versus STATE REPRESENTED BY

High Court of Madras

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Damodaran v. State represented by - Criminal Appeal (MD) No.376 of 2004 [2007] RD-TN 1610 (25 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 25/04/2007

CORAM

THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM

AND

THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR

Criminal Appeal (MD) No.376 of 2004

Damodaran .. Appellant Vs

State represented by

Inspector of Police,

Kuzhithurai Police Station,

Kanyakumari District.

Crime No.416 of 2000 .. Respondent Appeal filed under Section 374 of Cr.P.C., to set aside the judgment of the learned Additional Sessions Judge of Kanyakumari District at Nagercoil dated 15.3.2003 passed in S.C.No.102/2001.

For Appellant : Mr.K.Chellapandian, Senior Counsel Amicus Curiae

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.102/2001 on the file of the learned Additional Sessions Judge, Kanyakumari District at Nagercoil, on being found guilty as per the charges under Sections 341 and 302 of IPC and awarded to pay a fine of Rs.300/- in default, to undergo simple imprisonment for a period of one week 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.W.1 is the son of Ramasamy, since the deceased and P.W.4 is the brother-in-law of the deceased. The deceased along with the family members was residing at Kazhuvalthittai, Ambalachattivilai. There was a pathway in front of the house of the deceased Ramasamy, which was used by the family of the deceased in the past. The same was objected to by the accused. After some time, the pathway way was carved. Even then, the objection by the accused continued. On 1.12.1999, the deceased Ramasamy, went to the respondent Police and gave a petition to P.W.14, the Head Constable, attached to the respondent Police Station and the same was taken up for enquiry by treating it as a petition and P.W.15, the Sub Inspector of Police, attached to respondent Police Station, went over to the spot and advised the deceased to go to civil Court of law in that regard.

(b)While the matter stood thus, on 23.4.2000, at about 7.30 a.m., after returning from the Church, when P.W.1 and his father, the deceased, were chatting in front of the house, the accused who came there with a vettukathi hidden behind and attacked the deceased indiscriminately. This occurrence was witnessed not only by P.W.1, but also by P.Ws.2 to 4. Immediately, the deceased was taken to Thuckalay Government Hospital, in an auto which belonged to P.W.9. P.W.10, the

doctor, attached to the said hospital, gave the initial treatment to the deceased and also gave Ex.P.8-the Accident Register. While, the deceased was under treatment, an intimation was given to the respondent Police Station and P.W.13, the Head Constable, attached to the respondent Police Station, went to the hospital and recorded the statement of P.W.1, which is marked as Ex.P.1, on the strength of which a case came to be registered in crime No.416/2000 under Sections 341 and 307 of IPC. The Express F.I.R., Ex.P.11, was despatched to the Court. The deceased was then directed to go to Nagercoil Government Hospital for better treatment. P.W.11, the doctor, attached to the said hospital, medically examined the deceased and on being found that the health condition of the deceased was not satisfactory, he was sent to Tirunelveli Medical College Hospital, Palayamkottai, for further treatment.

(c)P.W.16, Inspector of Police, took up the investigation, proceeded to the spot, made an inspection in the presence of witnesses and prepared Ex.P.14- the Observation Mahazar and also Ex.P.15, the rough sketch. He also recovered the material objects from the place of occurrence in the presence of witnesses. On 28.04.2000, despite treatment, the deceased died and the death intimation was sent to the respondent police. On intimation, P.W.16, the Inspector of Police, altered the case to one under Section 302 of IPC and the Express Report, Ex.P.19, was despatched to the Court.

(d)P.W.16, 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.20-the Inquest Report. Following the inquest, he sent a requisition under Ex.P.23 to P.W.17, the doctor, attached to Tirunelveli Medical College Hospital, Palyamkottai, to conduct autopsy on the dead body of the deceased. P.W.17, 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.24-the Postmortem Certificate, wherein he has opined that the deceased would appear to have died out of shock and haemorrhage due to external injury No.1 and the corresponding internal injury to brain.

(e)Meanwhile, the accused was arrested on 28.04.2000. The accused came forward to give a confessional statement in the presence of witnesses, the admissible part of which is marked as Ex.P.17, pursuant to which M.O.1- Vettukkathi, 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-vettukkathi, 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.25 and 26-the Chemical Analyst Report and the Serologist Report respectively. P.W.18, the Inspector of Police, attached to the respondent police, took up further investigation and 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 18 witnesses and also relied upon 26 exhibits and 5 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 341 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.K.Chellapandian, learned Senior Counsel, appointed as Amicus Curiae, inter- alia made the following submissions:

(a)In the instant case, the prosecution rested its case on the evidence of P.Ws.1 to 4 who are the eyewitnesses to the occurrence. According to the prosecution, P.Ws.2 and 3 are independent witnesses. But, they turned hostile. Thus, only the evidence of P.Ws.1 and 4 was available to the prosecution. P.W.1 is the son and P.W.4 is the brother-in-law of the deceased Ramasamy and thus, since they are closely related to the deceased, their evidence must be carefully scrutinised.

(b)The learned Senior counsel submitted that P.W.1 could not have been an eyewitness to the occurrence. According to the prosecution, it was P.W.1 who took the deceased in an auto belonged to P.W.9, to Thuckalay Government Hospital and the Accident Register of the deceased, Ex.P.8, does not reveal the presence of P.W.1 in the hospital. P.W.9, the auto driver, who was examined, turned hostile. Thus, it would be quite clear that P.W.1 could not have been an eyewitness. P.W.4, the brother-in-law of the deceased, belongs to a place situated 10 kilometres away from the place of occurrence. It is highly improbable that a person who is residing at a place situated 10 kilometres away, was available at the place of occurrence at about 7.30 a.m. on the day of occurrence and thus, P.W.4 could not have also been an eyewitness. (c)Added further, the learned Senior counsel that it is highly doubtful whether Ex.P.1 could have come into existence as put forth by the prosecution. The occurrence has taken place, according to the prosecution at about 7.30 a.m. on 23.4.2000 and a report was given to the respondent police at about 3.15 p.m. But, the scene of occurrence is situated only 4 kilometres away from the respondent Police Station. It is pertinent to point out that according P.W.13, the Head Constable, he went to Thuckalay Government Hospital and recorded the statement of P.W.1 between 12.00 p.m. and 12.30 p.m. But, according to the evidence of

P.W.11, the doctor, attached to Nagercoil Government Hospital, he admitted the deceased at about 12.20 p.m. If to be so, P.W.13 could not have recorded the statement as put forth by him between 12.00 p.m. and 12.30 p.m. Thus,all would go to show that there was delay in recording the F.I.R. and also, the evidence what was adduced referred to above, would indicate that Ex.P.1 could not have come into existence at all.

(d)The learned Senior counsel further submitted that the medical evidence also did not support the prosecution case. The occurrence has taken place on 23.4.2000, but the deceased died on 28.4.2000 and hence, the death would not have been caused by the shock but only due to haemorrhage and if a proper treatment was actually given, the deceased would have survived. But, that was not done so. Under such circumstance, the opinion of the doctor, P.W.17, canvassed also cannot be said to be in favour of the prosecution. (e)Added further, the learned Senior counsel that there was a dispute between the parties in respect of a pathway and thus, the accused, even assuming to have committed the offence, he would have committed the same only due to sustained provocation and under the circumstance, the penal provision of murder would not be attracted. 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 Ramasamy, father of P.W.1, in an incident that took place on 23.4.2000 at about 7.30 a.m., was attacked and was taken to Thuckalay Government Hospital, therefrom to Nagercoil Government Hospital for further treatment and thereafter, to Tirunelveli Medical College Hospital, where he died on 28.4.2000. Originally, the case was registered under Sections 341 and 307 of IPC. On his death, the case was altered to one under Section 302 of IPC. After the inquest by P.W.16, the Inspector of Police, the dead body was subjected to postmortem by P.W.17, the doctor, attached to Tirunelveli Medical College Hospital, Palayakottai, who gave Ex.P.24-the Postmortem Certificate, wherein he has opined that the deceased would appear to have died out of shock and haemorrhage due to the injuries sustained by him. 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.In order to substantiate the fact that it was the accused who stabbed the deceased with a vettukkathi, the prosecution rested its case on the direct evidence by examining P.Ws.1 to 4. Unfortunately, P.Ws.2 and 3, who are the independent eyewitnesses, have turned hostile. But, in the opinion of the Court, it has not in any way affected the prosecution case, since P.Ws.1 and 4 have spoken about the occurrence. It is true that P.W.1 is the son and P.W.4 is the brother-in-law of the deceased. But, only on that ground of relationship, their evidence cannot be discarded. Despite, the exercise of the test of careful scrutiny, their evidence has stood the test. According to P.Ws.1 and 4, they were present at the time and place of occurrence. While P.W.1 was chatting with the deceased, the accused came there with M.O.1-Vettukkathi and attacked the deceased indiscriminately and the deceased was taken to the hospital.

9.It is true that in the instant case, P.W.9, the owner of the auto, was examined. But, he turned hostile. Under such circumstance, no fault can be attributed to the prosecution. When the deceased was taken to Thuckalay Government Hospital, he was in a semi-conscious state. P.W.10, the doctor, attached to the said hospital, has also recorded the statement given by the deceased, which is marked as Ex.P.8-the Accident Register, wherein it is found that the deceased was attacked by two known persons. The learned counsel for the appellant wanted to place reliance on Ex.P.8-the Accident Register of the deceased, to the effect that the accused has nothing to do with the offence and two known persons were involved in the occurrence. At this juncture, it is to be pointed out that the deceased was in a semi-conscious state and he has also narrated the entire incident and has stated that he was attacked by two known persons to P.W.10, the doctor, who has recorded the same. Therefore, much importance cannot be given to such a statement recorded by P.W.10, since, at that time, the deceased was semi-conscious and also, the mental frame of a person, at the time of semi-consciousness, would not be in a way to give correct particulars.

10.P.W.1 was an eyewitness to the occurrence and he has given a report to P.W.13, the Head Constable, attached to respondent Police Station, and the same was recorded under Ex.P.1. The contents of Ex.P.1 is consistent to the prosecution case and it was only the accused who came to the place of occurrence with a vettukkathi and attacked the deceased indiscriminately and the evidence of P.W.1 stood fully corroborated by the evidence of P.W.4 and thus, in the opinion of the Court, the evidence of P.Ws.1 and 4 inspired the confidence of the Court.

11.It is to be further added, that the medical evidence adduced through P.W.17, the doctor, attached to Tirunelveli Medical College Hospital, who conducted postmortem on the dead body of the deceased and Ex.P.24-the Postmortem Certificate, issued by him has also supported the prosecution case.

12.Yet another circumstance against the accused was the recovery of the weapon of crime, M.O.1-Vettukkathi, following the confessional statement given by the accused. The witnesses have also been examined to that effect. The evidence of the witnesses also remained unshaken. In the opinion of the Court, this is a strong circumstance pointing to the nexus between the accused and the crime. The contentions put forth by the learned Senior counsel for the appellant that P.Ws.1 and 4 could not have seen the occurrence at all, cannot be countenanced for the simple reason that the learned Senior Counsel wanted to rely upon the time factor

and the time interval was only half an hour which in the opinion of the Court would not in any way affect the prosecution case. Apart from this, originally the case was registered under Sections 341 and 307 of IPC. On the death of the deceased, the same was converted to one under Section 302 of IPC and the medical opinion canvassed by the prosecution, was actually in support of the prosecution case as stated above. Now, the contention that the accused has acted only due to sustained provocation, though attractive at the first instance, cannot also be countenanced. It is not in controversy that there was a pathway dispute between the accused and the deceased and a complaint was given to the Sub Collector and also it was treated as a petition by the respondent Police Station. That incident took place in December 1999. But, the occurrence has taken place during April 2000 and that too, after a period of 5 months the occurrence has taken place. There was no incident or any quarrel in respect of the pathway or about any other thing immediately preceding the occurrence. Under the circumstance, there was neither a quarrel nor a provocation which could be taken as a mitigating circumstance. Hence, the prosecution has proved its case beyond reasonable doubt. All or any one of the contentions put forth by the learned Senior counsel for the appellant do not merit acceptance by this Court and the Trial Court is perfectly correct in arriving at a finding that it was the accused who attacked the deceased with a Vettukkathi and as a direct consequence, the deceased died. This act of the accused cannot but be termed only as Murder.

13.Hence, the Trial Court is perfectly correct in recording the finding that the accused has committed offences under Sections 341 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.

15.Mr.K.Chellapandian, learned counsel appointed as Amicus Curiae on behalf of the appellant/accused, is entitled for remuneration from the Legal Aid, Madurai.

ap

To

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

Kuzhithurai Police Station, Kanyakumari District. 4. 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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