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THANULINGAM versus THE STATE REP.BY INSPECTOR OF POLICE

High Court of Madras

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Thanulingam v. The State rep.by Inspector of Police - Criminal Appeal (MD) No.26 of 2006 [2007] RD-TN 852 (7 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 07/03/2007

CORAM

THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM

AND

THE HONOURABLE MR. JUSTICE G. RAJASURIA

Criminal Appeal (MD) No.26 of 2006

Thanulingam .. Appellant Vs

The State rep.by Inspector of Police,

Rajakkamangalam Police Station,

Kanyakumari District. .. Respondent Appeal filed against the judgment passed by the learned District and Sessions Judge, Kanyakumari District, Nagercoil in S.c.No.151/1999 dated 12.12.2000.

For Appellants : Mr.K.P.Narayana Kumar For Respondent : Mr.S.P.Samuel Raj Addl.Public Prosecutor

:JUDGMENT



(Judgment of the Court was delivered by M.CHOCKALINGAM,J.) The sole accused in a case of murder on being found guilty as per the charge, awarded life imprisonment and also fine with default sentence, has challenged the judgment made in S.C.No.151/1999 on the file of the Principal Sessions Judge, Kanyakumari District at Nagercoil.

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

(a)P.W.1 is the wife and P.W.2 is the brother of the deceased. The appellant/accused and the deceased both belonged to Karavilai village within the jurisdiction of the respondent Police Station. The accused is the sympathiser of the D.M.K. Party, while the deceased was the supporter of the Congress Party. The accused is employed in the Ration Shop while the deceased was employed in the Water Tank of the Panchayat, Sankarankuzhi. The accused used to go to the Water Tank by 5 O' clock and come back at 10 O' clock and go for witnessing television in the house of one Narayana Perumal Nadar, the junior paternal uncle of the deceased, at about 11.00 p.m. every day.

(b)On 29.6.1999, when P.W.4 was carrying on business in his tea shop, at about 6.00 p.m. there was a wordy altercation between the deceased and the accused as to who would become the Prime Minister of this country after the election was over. P.W.4 intervened and so, they were pacified. On 29.6.1999, the deceased returned home by 10.00 p.m., had his dinner and proceeded to the house of Narayana Perumal Nadar at 11.00 p.m. The deceased after walking 50 feet was actually sitting on a bridge situated near a Vaikkal. The house light was burning. The accused came along with M.O.1, Iron rod, uttering "whether you are in support of Congress". Telling so, the accused attacked the deceased on his head and on different parts of the body. The deceased sustaining severe injuries fell down. The same was witnessed by P.Ws.1 and 2. The accused, when P.Ws.1 and 2 gathered, fled away from the place of occurrence along with the weapon of crime. P.Ws.1 and 2 took the injured in an auto which belonged to P.W.3 to the Government Hospital, Nagercoil.

(c)On 30.6.1999 at about 00.30 hours, the seriously injured deceased was admitted in Nagercoil Government Hospital and was given treatment by P.W.8, the doctor, attached to the Nagercoil Government Hospital. At that time, the deceased was not conscious. The Accident Register is marked as Ex.P.7. An intimation was given to the police and P.W.11, the Head Constable of Kottar Police Station, on receipt of the same, at about 1.30 a.m. gave an intimation to Rajakamangalam Police Station. P.W.10, the Head Constable attached to Rajakamangalam Police Station, on receipt of the same, proceeded to Nagercoil Government Hospital at about 6.00 a.m. 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 by the respondent Police Station in Crime No.300/99 under Section 302 IPC, at about 6.45 a.m. The Express F.I.R., Ex.P.10 was despatched to the Court. On receipt of the F.I.R., P.W.14, the Sub Inspector of Police proceeded to the scene of occurrence, made an inspection at about 9.00 a.m., prepared an Observation Mahazar-Ex.P.2 and Ex.P.13-the rough sketch and he also recovered the sample earth and the blood stained earth and also other material objects under a cover of Mahazar.

(d)The deceased was taken to the Palayamkottai Medical College, Tirunelveli on 30.6.1999 at about 6.45 a.m. and he was admitted at about 8.17 a.m. Despite treatment, the deceased died at about 2.30 p.m. On the said day, an intimation was given to the respondent Police Station about the death of the deceased. Then, the case was altered to Section 302 IPC and the Express Report- Ex.P.14 was sent to the Court, a copy of which was also sent to the Inspector of Police of the concerned crcle. On receipt of the copy of the same, P.W.15, the Inspector of Police, took up investigation, proceeded to Palayamkottai Medical College, Tirunelveli, conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.15, the Inquest Report. A requisition was forwarded to Palayamkottai Medical College, Tirunelveli, to conduct the postmortem on the dead body. P.W.9, the doctor attached to the said hospital, conducted autopsy on the dead body and gave the postmortem certificate, Ex.P.9, wherein he has opined that the deceased would appear to died out of shock and haemorrhage due to the injuries sustained. (e)Pending investigation, P.W.15 came to know that the accused surrendered before the Judicial Magistrate and the accused was taken to police custody on 12.7.1999 and in the presence of witnesses, he enquired the accused. The accused came forward to give a confessional statement, the admissible part of which is marked as Ex.P.4. The accused also produced M.O.1, the iron rod which was recovered under a cover of the Mahazar and he was sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body and the material object-iron rod, were subjected to chemical analysis by the Forensic Department which resulted in two reports-Ex.P.18-the Chemical Analyst's Report and Ex.P.19-the Serologist's Report. (f)The investigating officer completed the investigation and filed the final report before the concerned Judicial Magistrate.The case was committed to Court of Sessions. Necessary charge was framed. In order to substantiate the charge, the prosecution examined 16 witnesses and also relied on 19 exhibits and 5 material objects.

(g)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 charge stated supra and awarded life imprisonment which is the subject matter of challenge before this Court in this appeal.

3.Advancing the arguments on behalf of the appellant/accused, Mr.K.Narayana Kumar, learned Counsel inter-alia made the following submissions: (a)In the instant case, according to the prosecution, there were two eye witnesses, P.Ws.1 and 2 and the occurrence has taken place at about 11.00 p.m. on 29.6.1999. On the day of occurrence, when the deceased was sitting on a bridge in the nearby Vaikkal, the accused came with an iron rod and attacked the deceased pursuant to a wordy quarrel that arose between them as to their political feelings. According to the learned counsel, P.Ws.1 and 2 could not have witnessed the occurrence at all. Even as per the prosecution case, it is the usual practice of the deceased to move from his house directly to his junior paternal uncle Narayana Perumal Nadar's house to witness the television. If to be so, there was no occasion for the deceased to sit at 11.00 p.m. on a bridge which is situated in between. Apart from this, there was no occasion for P.Ws.1 and 2 to witness the occurrence at all, since it happened outside their house, away from the step doors..

(b)Added further, the learned counsel that the occurrence has taken place at about 11.00 p.m. and immediately after the occurrence, the deceased was taken to Nagercoil Government Hospital where he was admitted by P.W.8, the doctor, attached to the Government Hospital and thereafter, the deceased was taken to Palayamkottai Medical College, Tirunelveli at about 6.45 a.m. on the next day and he was admitted and given treatment. But, the deceased died there. According to P.W.1, it was P.W.2 who took the deceased from Nagercoil Government Hospital to Palayamkottai Medical College, Tirunelveli and that she did not accompany the deceased. But, according to P.W.2, P.W.1 also accompanied P.W.2 and took the deceased to Palayamkottai Medical College, Tirunelveli. In view of this discrepancy, their evidence if viewed from that angle, is highly doubtful and hence,they could not have seen the occurrence at all. (c)Yet another contention put forth by the learned counsel is that according to P.Ws. 1 and 2, the occurrence has taken place when the deceased was sitting on a bridge. But, according to P.W.3, the auto driver, when he came to take the deceased to hospital, the deceased was inside the house and he was brought out by P.Ws.1 and 2 and thus, it is highly doubtful under what circumstance the injured was actually taken into the house and it also casts a doubt as to the place of occurrence.

(d)Added further, the learned counsel that according to P.W.1 and as could be seen from the F.I.R.,

there was only one attack on the face and it is also affirmed by the doctor P.W.8, attached to Nagercoil Government Hospital. But, the doctor, P.W.9, who conducted the postmortem, has found four injuries. But, these injuries have not been spoken to either by P.W.1 or by P.W.2. Thus, it would indicate that they could not have seen the occurrence at all since they could not account for the injuries found on the deceased. All these would go to show that the ocular testimony was not reliable and that was also not corroborated by the medical evidence and hence, the prosecution case should have been rejected. (e)The learned counsel further contented that even assuming that the prosecution has proved its case to the extent that it was the accused who attacked the deceased with an iron rod, the act of the accused would not attract the penal provision of murder since there was a wordy quarrel pursuant to which the accused has acted and hence, it can only be a culpable homicide not amounting to murder and thus, it has got to be considered by this Court.

4.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.

5.In the instant case, it is not a fact in controversy that following the incident that took place on 30.6.1999 at about 11.00 p.m. the deceased was taken directly to Nagercoil Government Hospital and was given treatment by the doctor, P.W.8, and from there, the deceased was taken to Palayamkottai Government Hospital, Tirunelveli where he was admitted and despite treatment, he died and thus, the fact that he died as a direct consequence of the attack made is proved by the prosecution. The fact that the deceased died out of homicidal violence was never questioned by the accused at any point of time. The doctor, P.W.9, who conducted the postmortem and who issued the postmortem certificate, Ex.P.9, was also examined. It is also pointing to the fact that the deceased would have died of shock and haemorrhage. Hence, without any impediment, it can be recorded so.

6.In order to substantiate the fact that it was the accused who attacked the deceased with an iron rod at the place and time of occurrence, the prosecution examined two witnesses who are the wife and the brother of the deceased respectively. It is settled proposition of law that merely because of the relationship of the eye witnesses with the deceased, their evidence cannot be discarded unless and until a strong circumstance is brought about. In the instant case, this Court is unable to notice any reason or circumstance to reject the testimony.

7.P.Ws.1 and 2 have categorically spoken to the fact that the deceased came to the house from Water Tank at about 10.00 p.m., had his dinner and proceeded to his junior paternal uncle, Narayana Perumal Nadar's house to witness the television. On the way, he was sitting on the bridge nearby Vaikkal for some time. At that time, the occurrence has taken place and both have spoken to the fact clearly that it was the accused who came there with an iron rod and attacked the deceased on his head. Despite full cross-examination, the evidence of P.Ws.1 and 2 who are the direct eye witnesses, stood the test.

8.The contention put forth by the learned counsel for the appellant that they could not give proper account for the injuries sustained by the deceased has got to be discountenanced. It is true that P.W.1 has deposed that the accused attacked the deceased on the head and also, the doctor P.W.8, who admitted the deceased at Nagercoil Government Hospital, has also pointed out that only one injury was found. But, the doctor, P.W.9, who conducted the postmortem, has found four injuries out of which three were superficial and one was the corresponding internal injury. It was found that the skull was broken and thus, it caused the fatal death of the deceased. It is pertinent to point out that the occurrence took place at 11.00 p.m. and both the witnesses are the wife and the brother of the deceased respectively. When such an occurrence takes place at night hours like this, one cannot expect the eye witness either to account for the number of attacks or the number of injuries that would have been sustained. It is needless to say that the close relation like P.Ws.1 and 2 witnessing such an occurrence, would be in a grip of fear and terror and hence they could not account for the number of injuries. This contention cannot be a reason to reject the prosecution case, when their evidence inspires the confidence of the Court.

9.The other contention that there was discrepancy in the evidence of P.Ws.1 and 2 as to who accompanied the deceased from Nagercoil Government Hospital to Palayamkottai Medical College, Tirunelveli is of no consequence for the simple reason that the prosecution has marched P.W.8, the doctor, who admitted the deceased at Nagercoil Government Hospital and from whose evidence it is clear that the injured was admitted by him and from there, he was taken to Palayamkottai Medical College, Tirunelveli. The fact that the deceased was given treatment in Palayamkottai Medical College, Tirunelveli, is not in controversy. When he was under treatment, the deceased died, following which the inquest was conducted by the Investigator and the postmortem was conducted by the doctor P.W.9 who has given his opinion. At this juncture, the fact that the deceased was given treatment both at Nagercoil Government Hospital and at Palayamkottai Medical College, Tirunelveli, is quite evident. Thus, the discrepancy in the evidence of P.W.1 is of no consequence and it would be quite clear that the prosecution has proved the case through the ocular testimony which is fully corroborated by the medical evidence.

10.Yet another point to be noted is that the recovery of the iron rod, the material object, from the accused pursuant to the confession made by him and thus the prosecution has proved its case in that regard also.

11.Coming to the nature of the act of the accused, the Court is unable to agree with the learned counsel for the appellant that both the accused and the deceased are the sympathisers of two political parties respectively and they had a quarrel as to "who would be the Prime Minister of this country", and they were naming two persons. It is true that a quarrel has taken place in the evening for about 5 to 6 hours and they were pacified by P.W.4. But, the occurrence has taken place at about 11.00 p.m. and from this fact, there could not be any provocation for the accused. The occurrence has taken place at about 11.00 p.m. when the deceased was sitting on the bridge and the accused armed with an iron rod, went over there and uttered the words that "you are the supporter of the Congress Party and if you are alive only you can support", and saying this, the accused attacked on the skull of the deceased and caused the fatal injury. Hence, there is no quarrel or any provocation and even there is no reason for sustained provocation.

12.Under such circumstance, the act of the accused would draw the penal provision of murder and hence, it is a case where the Trial Court was perfectly correct in convicting the accused under Section 302 IPC and awarding life imprisonment and therefore, it has to be sustained by this Court.

13.This Court finds no reason to disturb the judgment passed by the Trial Court. Hence, the appeal must fail and fails, and accordingly, the same is dismissed.

To

1. The District and Sessions Judge,

Kanyakumari District, Nagercoil.

2. The Principal Sessions Judge, Kanyakumari.

3. The Inspector of Police,

Rajakkamangalam 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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