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THAVASI versus STATE REP. BY

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Thavasi v. State rep. by - CRIMINAL APPEAL NO.355 OF 2005 [2007] RD-TN 910 (12 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 12/03/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

CRIMINAL APPEAL NO.355 OF 2005

Thavasi .. Appellant

Vs.

State rep. by

the Inspector of Police,

Rajakkamangalam Police Station,

Kanyakumari District

Crime No.27 of 2003 .. Respondent

This criminal appeal is preferred under Section 374 Cr.P.C against the judgment of the learned Sessions Judge, Kanyakumari at Nagercoil made in S.C.No.95 of 2003, dated 16.03.2004.

For Appellant : Mr.C.Christopher

For Respondent : Mr.N.Senthurpandian, APP

:JUDGMENT



(The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenging the judgment of the Sessions Division, Kanyakumari District at Nagercoil made in S.C.No.95 of 2003, the sole accused/appellant, who stood charged under Section 302 IPC, tried, found guilty and awarded life imprisonment and also to pay a fine of Rs.1000/-, in default to undergo one year RI, has brought forth this appeal before this Court.

2.The brief facts of the prosecution case are as follows: a)P.W.1 is the brother and P.W.3 is the wife of the deceased. P.W.2 is also the resident of the same place. The accused also belonged to the same place. The accused was an arrack seller. He was involved in number of cases registered by different police stations and he was fined in number of cases also. Ex.P.22 series are the certified copies of the judgments in those cases and Ex.P.23 series are the xerox copies of the receipts for payments of fine. b)The accused was selling arrack in the thope of P.W.4, which is situated near the Ammankoil. The same was objected to by P.W.3 and the womenfolk of the village. On the grievance day, they have given a petition before the Collector, Nagercoil and a receipt was also given and the same was also marked as Ex.P.3. An enquiry was also conducted. Hence, against P.W.3 and her family members, the accused became enraged. On the previous occasion, the accused informed P.W.3 that he would finish off her husband. This was informed by P.W.3 to her husband. c)On 28.01.2003 at 8.00 a.m., when the deceased met the accused, the deceased advised him to obey the rules of the village and there arose a quarrel at that time. On the same day at about 3.00 p.m., the deceased was sleeping on the parapet wall of Mutharamman Temple. At that time, P.W.1 was returning to his house after taking bath in an odai and P.W.2 was proceeding for his business near the said temple. At that time, the accused, armed with vettu aruval, came there and attacked the deceased on his right upper arm and the deceased was running. The accused pulled him down and stamped him and he ran away from the place of occurrence.

d)P.Ws.1 and 2 were the eyewitnesses to the occurrence. Immediately, they took the deceased in a car driven by P.W.6 to the Government Medical College Hospital, Kottar at 3.15 p.m. P.W.8, the Doctor attached to the said Hospital, has admitted him and he has issued Ex.P.10, the Accident Register. Despite treatment, the deceased died at about 3.40 p.m. on the same day. An intimation was given to the respondent police station through the out post police station of the said Hospital.

e)P.W.15, the Sub Inspector of Police attached to the respondent police station, on receipt of the intimation, rushed to the Government Hospital and recorded the statement of P.W.1, which was marked as Ex.P.1, on the strength of which, a case came to be registered in Crime No.27 of 2003 against the accused under Section 302 IPC. Ex.P.21, the FIR, was despatched to the concerned court. f)P.W.17, the Inspector of Police, on receipt of the copy of the FIR, took up the investigation, proceeded to the spot, made an inspection in the presence of the witnesses. He prepared Ex.P.4, the observation mahazar and Ex.P.24, the rough sketch. He also recovered material objects from the place of occurrence in the presence of the witnesses. Then, he went to the hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.25, the inquest report. g)Pursuant to the requisition made by the Investigating Officer, P.W.10, the Doctor, attached to the Government Medical College Hospital, has conducted autopsy on the dead body of the deceased. He has issued Ex.P.13, the post- mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained.

h)Pending investigation, the Investigating Officer came to know that the accused surrendered before Judicial Magistrate, Valliyoor. The accused was taken to police custody. During police custody, the accused gave a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.19. Pursuant to the confessional statement, the accused produced M.O.1 vettu aruval, which was recovered in the presence of the witnesses under a cover of mahazar. Then, the accused was sent for judicial remand. All the material objects recovered from the place of occurrence, from the dead body of the deceased and the M.O.1, vettu aruval recovered from the accused, pursuant to the confessional statement, were sent for chemical analysis by the Forensic Science Department pursuant to the requisition made through the concerned court. Ex.P.16 is the Chemical Analyst's report and Ex.P.17 is 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 marched 18 witnesses and relied on 25 exhibits and 6 M.Os. 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 prosecution witnesses, which he flatly denied as false. No defence witness was examined. The lower court heard the arguments advanced on either side and was of the opinion that the prosecution has proved the case beyond reasonable doubt and has found the accused/appellant guilty as per the charge and awarded punishment as referred to above, 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, P.Ws.1 and 2 are the eyewitnesses, according to the prosecution that P.W.1 is the brother and P.W.2 is the resident of the said place; that P.W.2 could not have seen the occurrence at all and his evidence was planted in order to speak the facts of the prosecution case; that a very reading of the FIR would clearly reveal that the name of P.W.2 was added by way of interpolation and thus, his inclusion was only an afterthought and hence, his evidence has got to be eschewed; that insofar as P.W.1 was concerned, he could not also have seen the occurrence at all; that at the time of cross examination, he has candidly admitted that he first saw his brother was actually running with injury and thus it would be quite clear that he could not have seen the occurrence at all and under these circumstances, the evidence of both the eyewitnesses have got to be rejected and thus, the evidence of P.Ws.1 and 2, as eyewitnesses, was nothing, but planted.

5.Added further the learned counsel that according to the prosecution, the occurrence has taken place at about 3.00 p.m. and both P.Ws.1 and 2 have seen the occurrence and they took the deceased immediately in a car to the Hospital and he was also admitted at about 3.20 p.m.; that according to P.W.8, the Doctor, if the deceased would have been taken to the hospital within 15 minutes after the occurrence, he would have been saved; that further the Doctor has deposed that if the occurrence had taken place 1-1/2 hours prior to admission, there was a chance for loss of blood; that all would go to show that they could not have seen the occurrence at all; that their evidence was planted to speak the prosecution case and thus, their evidence has got to be eschewed; that the medical opinion did not support the prosecution case; and that in the instant case, the confessional statement and the recovery of weapon of crime pursuant to the confessional statement were nothing, but a subsequent introduction in order to strength the prosecution case, if possible, but in vain, since the evidence in this regard has got to be rejected.

6.The learned counsel further argued that even assuming the prosecution has proved the case that it was the accused, who attacked the deceased with aruval, the act of the accused would not attract the penal provisions of murder; that had it been the intention of the accused/appellant to kill the deceased, he would have attacked the deceased on vital parts, but in the instant case, he has attacked the deceased only in the arms and thus, it would be quite clear that he had no intention at all to kill the deceased; that in the morning hours also, there was a quarrel between the accused and the deceased and hence, the court has to look into all these circumstances of the case and hence, the act of the accused would not attract the penal provisions of murder, but it would be one culpable homicide not amounting to murder.

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

8.It is not the fact in controversy that following an incident that took place at about 3.00 p.m. on 28.01.2003 Thirumal, the husband of P.W.3 was taken to the hospital, where he succumbed to the injuries. Following the case registered by the respondent police, the Investigating Officer took up the investigation. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared inquest report. Following the inquest, the dead body was subjected to post-mortem by P.W.10, the Doctor and he has issued Ex.P.13, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained and thus, the fact that the deceased died out of homicidal violence remains proved and apart from that, the same was not questioned by the appellant/accused at any stage of proceedings and hence, without any impediment, it could be recorded so.

9.In order to substantiate the fact that it was the accused, who attacked the deceased with aruval and caused his death, the prosecution has relied on the evidence of P.Ws.1 and 2. Even after applying the test of careful scrutiny, the evidence of P.Ws.1 and 2 stood the test. P.Ws.1 and 2 have clearly spoken to the fact that on 28.01.2003 at about 3.00 p.m. the deceased was sleeping on the parapet wall of Mutharamman temple and at that time, P.W.1 was coming from Odai after taking bath and P.W.2 was proceeding for his business and the occurrence has taken place. The contention put forth by the learned counsel for the appellant that P.Ws.1 and 2 could not have seen the occurrence has got to be rejected for more reasons than one. Immediately after the occurrence, P.Ws.1 and 2 took the deceased to the hospital in a car driven by P.W.6 and the deceased was admitted in the hospital at about 3.20 p.m. The evidence of P.W.8, the Doctor that had the deceased been brought within 15 minutes after the occurrence, he would have been saved either, or if the occurrence had taken place 1-1/2 hours prior to admission, there was a chance for loss of blood will be of no consequence, since the evidence of both P.Ws.1 and 2 has inspired the confidence of the court. They have clearly narrated the incident and the lower court has marshalled their evidence properly, considered the same and has accepted it and rightly too.

10.The other contention is that the medical opinion did not support ocular testimony for the reason that according to P.Ws.1 and 2 after the attack with aruval, the accused stamped the deceased on his chest, but no corresponding injury was found. But, it has got to be taken into account that whether any stamping on the chest would make corresponding injury or not will depend upon the force applied. But, in the instant case, according to the Doctor, stamping on the body was not the reason for the cause of death of the deceased, but it was due to shock and haemorrhage due to the injuries sustained and hence, this contention has got to be rejected. Now, it could be seen that the ocular testimony through P.Ws.1 and 2 remains fully corroborated by the medical opinion. P.Ws.1 and 2 have categorically spoken about the act of the accused and the corresponding injury that was found in the medical opinion and thus, the medical opinion is in full corroboration with the ocular testimony.

11.Yet another circumstance against the accused/appellant is the confessional statement and the recovery of weapon of crime pursuant to the confessional statement. Necessary witness has been examined to that effect. Despite cross-examination, their evidence remained unshaken and without any impediment, it has got to be accepted. This part of the evidence as to the recovery of M.O.1, Vettu aruval, pursuant to the confessional statement would clearly indicate the nexus of the accused with the crime. In the instant case, the prosecution has got ocular testimony, which was fully corroborated by the medical opinion and also the recovery of weapon of crime, which would be sufficient to sustain the findings recorded by the lower court that it was the accused, who attacked the deceased and caused his death.

12.The contention of the learned counsel for the appellant that the act of the accused would not attract the penal provisions of murder has got to be rejected. In the instant case, at the time of occurrence, there was no quarrel between the accused and the deceased. In the instant case, from the available evidence, it would be quite clear that the accused was an arrack seller; that a petition was given to the District Collector, Nagercoil by all the villagers, including P.W.3. If at all the accused had any grievance, it should be against P.W.3 and not the deceased, who is the husband of P.W.3. On the date of occurrence, in the morning, the deceased advised the accused to obey the rules of the village and he has not mentioned anything more. At no stretch of imagination, such an advice would provoke a person. The occurrence has taken place at about 3.00 p.m., when the deceased was sleeping in a parapet wall of Mutharamman temple. At that time, the accused armed with vettu aruval, went over there, cut him and caused his death. Thus, the act of the accused was an intentional one. The act of the accused would attract the penal provisions of murder. The narration of the incident would indicate the act of the accused that with an intention to cause death of the deceased, the accused has attacked the deceased and caused his death. Hence, the lower court was perfectly correct in finding the accused guilty under Section 302 IPC and sentencing him to undergo life imprisonment along with a fine and default sentence.

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

Index : Yes

Internet : Yes

vvk

To

1.The Sessions Judge,

Kanyakumari Division,

Nagercoil.

2.The Inspector of Police,

Rajakkamangalam Police Station,

Kanyakumari 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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