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ESAKKIMUTHU versus STATE

High Court of Madras

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Esakkimuthu v. State - Criminal Appeal (MD) No.448 of 2004 [2007] RD-TN 610 (20 February 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 20/02/2007

CORAM:

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

and

THE HONOURABLE MR.JUSTICE G.RAJASURIA

Criminal Appeal (MD) No.448 of 2004

Esakkimuthu,

S/o.Shanmugavel ... Appellant/Accused Vs

State,

rep. by the Inspector of Police,

Alangulam Police Station,

Alangulam.

Crime No.301 of 2001 ... Respondent/ Complainant

Appeal under Section 374 of the Code of Criminal Procedure against the judgment, dated 18.08.2003, of the learned Principal Sessions Judge, Tirunelveli, in S.C.No.77 of 2002.

For Appellant ... Mr.A.Kajamohideen For Respondent ... Mr.N.Senthurpandian, Addl.Public Prosecutor. :J U D G M E N T



(Judgment of the Court was delivered by M.CHOCKALINGAM,J) This appeal is directed against the judgment of the learned Principal Sessions Judge, Tirunelveli Division, dated 18.08.2003 in S.C.No.77 of 2002, whereby the sole accused/appellant stood charged, tried and found guilty as per the charge of murder and awarded the life imprisonment and also to pay a fine of Rs.2000/-, in default to undergo six months rigorous imprisonment.

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

(a)P.W.1 Vellammal is the wife of the deceased and P.W.2 Karpagavalli is their foster daughter. P.W.6 Sermakkani is the mother of P.W.2. P.W.9 Sudalaimuthu is the brother of the deceased. They are all residents of Karuvanallur. The accused/appellant also belongs to the same place. (b)One year prior to the occurrence, the deceased Chellaiah borrowed a sum of Rs.1,000/- from the accused on interest, but it was not repaid even after many demand by the accused. There was a dispute over the rate of interest between the accused and the deceased. At one point of time, the deceased made an attempt to repay the said amount through P.W.9, but the accused was not ready to receive the same. The accused was adumbrating that his father died due to the invocation of supernatural elements by the deceased and he was challenging that he would finish him off.

(c)On 13.07.2001, at about 9.00 p.m. in the night, P.W.1, P.W.2 and the deceased went to witness the programmes in the television set belonged to the panchayat. While P.Ws.1 and 2 were witnessing, the deceased came back early in order to go to his work in the morning. Both P.Ws.1 and 2 were returning home at about 00.30 a.m. in the night and at that time the electric light in the verandah was burning. They saw the accused, armed with an aruval, actually attacking the deceased who was lying in the cot put on the verandah and on seeing them, the accused left the place of occurrence. When they went near the deceased, they found him dead. Thereafter, both P.W.1 and P.W.2 went to Seethaparpanallur Police Station, which is an Outpost Police Station attached to Alangulam Police Station, where P.W.1 narrated about the occurrence happened in her house to P.W.11, the Sub-Inspector of Police, at 1.00 a.m. on 14.07.2001, who in turn recorded the same and obtained the signature of P.W.1 in it after read it over to her.

(d)On the strength of Ex.P-1, the complaint, P.W.11 at 2.30 a.m. on 14.07.2001 registered a case in Crime No.301/2001 under Section 302 IPC and prepared Ex.P-7 Express FIR. He despatched the same to the Court through P.W.12 Head Constable and the same was handed over to the Judicial Magistrate at 5.30 a.m. by P.W.12. Ex.P-8 is the passport given to P.W.12. A copy of the FIR was sent to the Inspector of Police, Pavoorchathithram, who was in-charge of Alangulam Police Station also, for investigation. (e)P.W.15, the Inspector of Police, on receipt of copy of Ex.P-7 FIR, took up the investigation, proceeded to the scene of occurrence, made an observation and prepared Ex.P-2, the observation mahazar, in the presence of P.W.7 and another. He also drew Ex.P-15, the rough sketch. He conducted inquest over the dead body of Chelliah between 4.00 and 7.00 a.m. in the presence of Panchayatdars. Ex.P-16 is the inquest report prepared by him. He enquired P.W.1 and recorded her statement. Thereafter, he sent the body for postmortem to the Government Hospital through P.W.13 Constable with Ex.P-4 requisition. He recovered M.O.2 bloodstained cement mortar, M.O.3 sample cement mortar and M.O.7 Iron cot under Ex.P-3 mahazar attested by witnesses. He examined P.Ws.2 to 7, P.W.8 and others and recorded their statements. (f)P.W.8, the Doctor attached to Tirunelveli Medical College Hospital, conducted autopsy on the body of the deceased at 10.30 a.m. on 14.07.2001 and gave Ex.P-5 Postmortem Certificate opining that the deceased would appear to have died of shock and haemorrhage due to multiple heavy cut injuries. After postmortem, P.W.13 recovered M.Os.4 to 7, personal wearing apparels of the deceased, from the body and handed over the same in the police station.

(g)Pending investigation, P.W.15, the Inspector of Police, arrested the accused at 9.00 p.m. on the same day in the presence of P.W.10 and another. When enquired, the accused voluntarily gave a confessional statement, admissible portion of it is marked as Ex.P-17, pursuant to which the accused produced M.O.1 aruval and the same was recovered under Ex.P-6 mahazar attested by witnesses. Thereafter, he sent the accused to the judicial remand and also sent the material objects to the Court.

(h)On 17.07.2001, P.W.15, the Inspector of Police, gave Ex.P-10, the requisition, to the Magistrate to subject the material objects recovered from the place of occurrence, from the body of the deceased and pursuant to the confessional statement of the accused to chemical analysis by the Forensic Department, which resulted in two reports, namely Ex.P-12, the Chemical Examiner's Report and Ex.P-14, the Serologist's Report which were received in the Court. Ex.P-10 is the letter of the Court to the Forensic Department. Since P.W.15 was transferred, P.W.16 took up the further investigation in the case. On completion of investigation, P.W.16, the Inspector of Police, filed the final report in the case against the accused under Section 302 IPC on 30.08.2001.

3.The case was committed to the Court of Session and necessary charge was framed. To substantiate the charge levelled against the accused, the prosecution marched 16 witnesses as P.Ws.1 to 16 and relied on Exs.P-1 to P-17 as well as M.Os.1 to 7. On the completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 of the Code of Criminal Procedure as to the incriminating circumstances found. The accused denied them as false. No witness was examined on the side of the defence. The trial court heard the arguments advanced on either side and took the view that the the prosecution has proved its case beyond reasonable doubt and found the accused/appellant guilty under Section 302 IPC and awarded the life imprisonment. Hence the appeal has arisen before this Court.

4.Advancing his arguments on behalf of the appellant, the learned counsel would submit that in the instant case, according to the prosecution, P.Ws.1 and 2 were the eye-witnesses, but they could not have seen the occurrence at all. He further submitted that P.Ws.1 and 2 are the close relatives of the deceased, being the wife and foster daughter and according to them, the occurrence had taken place at about 00.30 a.m. on 14.07.2001, but the occurrence could not have taken place at all at that time, in view of the medical opinion canvassed by the prosecution. It is the further submission of the learned counsel, according to the postmortem Doctor P.W.8, after sustaining the injuries found on his body, the deceased would have lived 5 to 10 minutes, but according to P.Ws.1 and 2 when they went near the deceased they found him dead. Learned counsel would further add that according to P.W.1 all of them took food by 7.00 p.m. on 13.07.2001 and according to the postmortem Doctor the stomach contained 400 grams of cooked rice particles in early phase of digestion and he would further state that the occurrence would have taken place one or one and half-an- hour from the time of consumption of the food and if it is so, the occurrence could not have taken place at 00.30 a.m. on 14.07.2001 as put-forth by P.Ws.1 and 2 and thus they could not have seen the occurrence at all and hence the evidence of P.Ws.1 and 2 has got to be rejected.

5.Learned counsel for the appellant would further add that in the instant case, it is highly doubtful whether P.Ws.1 and 2 proceeded to the outpost police station and could have given the report at 1.00 a.m. on 14.01.2001, for the reason that when there were number of relatives, the theory of P.Ws.1 and 2, who were the women folks, went over the police station situated four kilometres away from the scene of occurrence alone was highly improper and unbelievable. Apart from this, in the instant case, five injuries were noticed by the postmortem doctor and it is also mentioned in the postmortem certificate Ex.P-5, but P.Ws.1 and 2 could not give proper account for that injuries found on the body of the deceased and if that be so, it would also add that P.Ws.1 and 2 could not have seen the occurrence at all. Further, in the instant case, the prosecution placed reliance and the lower court also accepted the so-called theory of the so-called arrest of the accused at 9.00 p.m. on 14.07.2001, and the alleged confessional statement made by the accused and also recovery of the weapon M.O.1 Aruval, but P.W.1 has categorically admitted that at 4.00 a.m. on 14.07.2001 the accused was brought to the police station and if that be so, all these alleged voluntary confession and recovery of weapon are all nothing but planted for the purpose of prosecution case and hence it could not be accepted. Added further the learned counsel submitted that in the instant case, so many discrepancies were found and despite the same, the lower court, without considering the factual position, had taken an erroneous view that the accused has committed the offence and therefore the appellant is entitled for an acquittal in the hands of this Court.

6.The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions.

7.The Court paid its anxious consideration to the submissions made on either side and also made a thorough scrutiny of the available materials.

8.It is not the fact in controversy that one Chelliah, the husband of P.W.1, was done to death in an occurrence that took place at the time and place as put-forth by the prosecution. In order to appreciate the fact that the deceased died due to homicidal violence, the prosecution has marched the evidence of medical person as a witness and he has also issued a certificate, marked as Ex.P-5 opining that the deceased would have died out of shock and haemorrhage due to multiple heavy injuries. This fact that the deceased died due to homicidal violence was never called in question by the accused either before the trial court or before this Court. Therefore, it can be safely concluded that the deceased died out of homicidal violence.

9.In order to substantiate its case, the prosecution relied on the direct evidence by marching P.Ws.1 and 2, who are the wife and foster daughter of the deceased, respectively. The Court is mindful of the caution of the settled principle of law that in a given case like this where the eye-witnesses to the occurrence are close relatives of the deceased, without exercising the test of careful scrutiny, their evidence should not be accepted. Despite the exercise of the said test, the Court is satisfied that the evidence of P.Ws.1 and 2 has got to be accepted. P.Ws.1 and 2 have, in one voice, categorically spoken that all of them, including the deceased, were witnessing the programme in the television set in the panchayat and the deceased left for home early and they came back at 00.30 a.m. on 14.07.2001 and at that time the electric light in the verandah was burning and they found the accused armed with an aruval and also actually witnessed the occurrence in which the accused cut the deceased who was lying the cot and on seeing them the accused left the occurrence place. It is their further evidence that when they went near Chelliah they found him dead.

10.In the instant case, it is the the contention put-forth by the learned counsel for the appellant that in view of the medical evidence the evidence of the ocular testimony cannot be accepted. It is the well settled proposition of law that when there is a conflict between the evidence of ocular witnesses and the medical opinion, the ocular testimony must prevail. In the instant case, the medical opinion, in the opinion of the Court, is also not in support of the defence plea. The medical opinion of P.W.8, the postmortem doctor, that the person who sustained those injuries noticed in Ex.P-5 would have lived for 5 to 10 minutes from the time of sustaining injuries cannot be a reason to reject the testimony of P.Ws.1 and 2. According to P.Ws.1 and 2, when they returned home from panchayat building they found the accused, armed with an aruval, cutting the deceased who was lying on the cot and when they came near the deceased they found him dead. Thus it is clear that it was the accused/appellant who cut the deceased with aruval.

11.The another circumstance pointed out by the learned counsel for the petitioner is that according to P.W.1, they had their dinner at 7.00 p.m. and according to the medical evidence the occurrence should have been taken place one or one and half-an-hour from the time of consumption of the food and hence the actual occurrence should be much earlier to 00.30 a.m. and in such circumstances there is no bona fide reason to believe the version of P.Ws.1 and 2 that the occurrence has taken place at about 12.00 in the midnight or 00.30 a.m. In the instant case, the strong circumstance, according to the prosecution, is that the occurrence took place at 00.30 a.m.; immediately P.Ws.1 and 2 rushed to the Alangulam Outpost Police Station, which is at a distance of four kilometres away from the scene of occurrence, and narrated the occurrence to P.W.11, the Sub-Inspector of Police, at about 1.00 a.m., which was reduced into writing by P.W.11, and based on the strength of the said complaint Ex.P- 1, P.W.11 registered a case at 2.30 a.m. and prepared the Express FIR and the FIR reached the Magistrate at 5.30 a.m. This would go to show that a genuine case was placed before the police and a case came to be registered immediately and this fact reached the Magistrate within a short span of time. Therefore, the contention of the learned counsel in respect of the time of occurrence has got to be rejected.

12.It is true, as rightly pointed out by the learned counsel for the petitioner, that P.W.1 has admitted in her evidence that the accused was brought to the police station at 4.00 a.m. on 14.07.2001. If that be so, the arrest of the accused at 9.00 p.m. on 14.07.2001, the confession statement alleged to have been made by the accused and the consequent recovery of the weapon have got to be rejected. Even the rejection of that part of the prosecution case, will not in any way would help the accused/appellant.

13.In the instant case, the prosecution by direct evidence, by examining eye-witnesses P.Ws.1 and 2, which is corroborated by medical evidence, has brought home the guilt of the accused leaving no doubt at all in the mind of the Court. Apart from this, in the instant case, the occurrence has taken place in front of the house of the deceased at 00.30 a.m. and the appellant/accused, armed with an aruval, came to the spot and done the deceased to death by cutting him with aruval and this would be indicative of the fact that it is a pre- planned intention to cause the death and this act would fall within the ambit of murder and as one require a sentence of life imprisonment under Section 302 IPC, which has been rightly done by the trial Court and this Court finds no reason to interfere either with the conviction or the sentence awarded by the trial court.

14.Hence the appeal fails and the same is dismissed and the conviction and sentence imposed on the appellant/accused by the trial court is hereby confirmed.

To:

1.The Principal Sessions Judge,

Tirunelveli District,

Tirunelveli.

2.The Inspector of Police,

Alangulam Police Station,

Tirunelveli District.

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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