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PERIYASAMY versus THE STATE THROUGH THE

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Periyasamy v. The State through the - CRL.A.No.334 of 2005 [2007] RD-TN 953 (14 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 14/03/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

CRL.A.No.334 of 2005

Periyasamy .. Appellant

vs

The State through the

Inspector of Police

Peravoorani Police Station

in Cr.No.148 of 2003

Thanjavur District .. Respondent

Criminal appeal preferred under Sec.374(2) of Cr.P.C. against the judgment of the Additional Sessions Judge (Fast Track Court No.II), Pattukottai, in S.C.No.16/2004 dated 22.3.2004.

For Appellant : Mr.D.Malaichamy

For Respondent : Mr.P.N.Pandithurai Additional Public Prosecutor :JUDGMENT



(Judgment of this Court was delivered by M.CHOCKALINGAM, J.) The sole accused/appellant who faced trial in S.C.No.16/2004 for a charge of murder and on being found guilty as per the charge and awarded life imprisonment by the Additional Sessions Court (Fast Track Court No.II), Pattukottai, has challenged the conviction and sentence.

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

(a) P.W.1 is the son of the deceased Rakkammal @ Rakkiyammal. The accused is also her another son. P.W.2 is the sister of the deceased. P.W.3 is the son of P.W.2. They were living at Veerakudimanakkadu within the jurisdiction of the respondent police. The husband of the deceased and the accused were living separately during the relevant time. On the date of occurrence i.e., 30.5.2003, at about 8.30 A.M., the accused came to the house of the deceased, where P.Ws.1 to 3 were also available. He demanded for the ration rice, and the deceased refused to give. Immediately, he attacked her with an aruval indiscriminately, and she was taken by P.W.1 to the Government Hospital, Peravoorani, where she was given initial treatment. On intimation, P.W.9, the Sub Inspector of Police, came to the hospital, to whom P.W.1 gave a statement under Ex.P1, on the strength of which a case came to be registered in Crime No.148/2003 under Sec.307 of I.P.C. The First Information Report, Ex.P12, was sent to Court. On advise, the deceased was taken to the Medical College Hospital, Thanjavur, where she was admitted, and she was given treatment.

(b) On receipt of the copy of the FIR, P.W.10, the Inspector of Police, took up investigation, proceeded to the scene of occurrence, made an inspection and prepared Ex.P4, the observation mahazar, and Ex.P13, the rough sketch. He recovered M.O.2, bloodstained earth, and M.O.3, sample earth, under a cover of mahazar. The accused was also arrested on 31.5.2003 at about 11.30 A.M. He came forward to give a confessional statement voluntarily, which was recorded in the presence of witnesses. Ex.P2 is the admissible part of the confessional statement, pursuant to which he produced M.O.1, aruval, which was recovered under a cover of mahazar, Ex.P3, in the presence of witnesses. (c) Despite treatment, she died on 3.6.2003 at about 1.20 P.M. An intimation was given to the respondent police. Thereafter, the case was altered to Sec.302 of I.P.C. The express report, Ex.P15, was sent to the Court. (d) P.W.11, the Inspector of Police, took up the further investigation and proceeded to the place of occurrence. He also went to the hospital and conducted inquest on the dead body of Rakkammal in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P16. (e) The dead body of Rakkammal pursuant to a requisition, Ex.P10, was subjected to autopsy by the Medical Officer, examined as P.W.8. She found 4 external injuries. The Doctor has issued a postmortem certificate, Ex.P11, with her opinion that the deceased would appear to have died due to multiple injuries involving the vital organs namely the brain and cervical spinal column. (f) All the material objects recovered from the place of occurrence, and M.O.1, aruval, recovered from the accused pursuant to the confessional statement, were subjected to chemical analysis, which resulted in two reports namely Ex.P8, the Chemical Analyst's report, and Ex.P9, the Serologist's report. The Investigating Officer completed the investigation and filed the final report.

3.The case was committed to Court of Session, and necessary charge was framed. In order to prove the charge, the prosecution examined 11 witnesses and also relied on 16 exhibits and 3 material objects. On completion of evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side, took the view that the prosecution has proved the case beyond reasonable doubt, found the appellant/accused guilty and awarded life imprisonment which is the subject matter of challenge before this Court.

4.Advancing his arguments on behalf of the appellant, the learned Counsel made the following submissions:

(i) There were, according to the prosecution, three eyewitnesses, out of whom P.W.2 did not support the case of the prosecution. Thus, the only available witnesses were P.Ws.1 and 3. P.W.1 is the son, and P.W.3 is the cousin brother of P.W.1. Both these P.Ws.1 and 3 could not have seen the occurrence at all.

(ii) According to P.W.1, he took the deceased to the hospital immediately, and she was given initial treatment at the Government Hospital, Peravoorani. Neither the Doctor who gave treatment, was examined, nor the accident register copy in that regard was also marked. Further, she was immediately taken to the Medical College Hospital, Thanjavur; but, she died only on 3.6.2003, while the occurrence has taken place on 30.5.2003. Thus, there were three intervening days. Here also, neither the Doctor, who gave treatment, was examined, nor the case sheet pertaining to the treatment given, was also filed. This would go to show that the prosecution has suppressed all the relevant materials. If Ex.P1 document which is alleged to have come into existence at the instance of P.W.1, is viewed from the suppression of those documents, it would cast a doubt not only on the prosecution case, but also on the evidence of P.W.1 that he was an eyewitness.

5.The learned Counsel would further add that in the instant case, even the motive alleged, was flimsy for which such a grave act could not have been done at all, and thus, the prosecution has not either proved the motive or the act.

6.Added further the learned Counsel that even assuming that the accused has acted in that manner attacking her with the aruval and caused the death of his mother, the act of the accused would not attract the penal provisions of murder for the simple reason that during the relevant time, the deceased and her husband were living apart; that she was getting ration rice for her husband also for the past three months; that it was being demanded by the son namely the accused; but, she had not given; that on the date of occurrence, he was making a demand; that even that time also, she refused; that by that sustained provocation, he has attacked her and as a direct consequence, caused the death; that apart from that, she has died after a few days; that all would go to show that he has no intention to cause the death of the deceased, and hence, it would be culpable homicide not amounting to murder, and it has got to be considered by this Court.

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

8.It is not a fact in controversy that Rakkammal, the mother of P.W.1 and also the accused, following an incident in which she was attacked at 8.30 A.M. on 30.5.2003, was initially taken to the Government Hospital, Peravoorani, and thereafter, to the Medical College Hospital, Thanjavur, and she died on 3.6.2003 as a direct consequence of the attack. Following the death, an inquest was made by the Investigator, and an inquest report was prepared. The postmortem Doctor, P.W.8, conducted autopsy on the dead body, and she has given her opinion that the deceased died due to multiple injuries involving the vital organs namely brain and cervical spinal column. This fact that she died out of homicidal violence was never questioned by the appellant/accused at any stage of the proceedings. Hence, it has got to be recorded so without any impediment factually.

9.Coming to the question as to the proof adduced by the prosecution with regard to the act of the accused, the prosecution has brought forth evidence, which, in the opinion of this Court, is sufficient. In the case on hand, three eyewitnesses were examined, who were P.Ws.1 to 3. True it is, P.W.1 is the son, and P.W.2 is the sister of the deceased, while P.W.3 is the son of P.W.2. Thus, they are all close relations. It is a settled principle of law that merely because of the relationship, their evidence cannot be discarded. In the instant case, P.W.2 has not supported the prosecution case. But, fortunately, the prosecution had the evidence of P.Ws.1 and 3. They have clearly spoken to the fact that at the time and place of occurrence, they were available; that they were chatting in front of the house of the deceased; that at about 8.30 A.M., the accused came with the aruval and demanded ration rice; that she refused to give; and that he immediately attacked her with the aruval and fled away from the place of occurrence. The lower Court has marshaled the evidence proper. Thus, the evidence of P.Ws.1 and 3 has inspired the confidence of the Court, and it has been rightly accepted by the trial Court. That apart, the ocular testimony of P.Ws.1 and 3 stood fully corroborated by the medical evidence adduced through the postmortem Doctor, examined as P.W.8, and the postmortem certificate, marked as Ex.P11, from which it could be seen that the deceased died due to multiple injuries involving the vital organs namely brain and cervical spinal column.

10.Yet another circumstance is the recovery of M.O.1, aruval. After the case was registered under Sec.307 of I.P.C. on 30.5.2003, the accused was arrested on the next day. He volunteered to give a confessional statement. Consequent upon the same, he produced M.O.1, aruval, which has also been recovered in the presence of witnesses. A witness has also been examined to that effect. Despite cross-examination in full, it remained unshaken. The evidence projected by the prosecution as to the arrest, confession and recovery of M.O.1, would also be pointing to the nexus of the crime with the accused. Thus, the prosecution had sufficient evidence, in the opinion of the Court, to record a finding that it was the accused who committed the crime at the time and place as put forth by the prosecution.

11.Coming to the question as to the nature of the act of the accused, the Court considered the contentions put forth. The Court cannot agree with the learned Counsel for the appellant. In the instant case, it was a case of matricide. It is true that during the relevant time, the deceased and her husband were living apart. According to the prosecution, at the time when he came over to the house of the mother, he was demanding ration rice; but, she refused. According to the learned Counsel for the appellant, for a period of three months, she was getting rice for her husband also; but, they were living apart, and the accused used to go and ask for the ration rice, and she refused, and he had sustained provocation, due to which he has acted so. In support of his contention, the learned Counsel relied on two decisions, one by the Apex Court reported in AIR 1993 SUPREME COURT 973 (HARISH KUMAR V. STATE (DELHI ADMINISTRATION) and the other by the Division Bench of this Court reported in 2002 - 2 - L.W. (CRI.) 769 (RAJAN & OTHERS V. STATE REP. BY INSPECTOR OF POLICE).

12.From the evidence, it could be seen that there was not even a wordy quarrel that arose. He came over there armed with aruval, and made a demand. When she refused, he attacked her with the aruval, and as a direct consequence, she has died. The decisions relied on by the learned Counsel for the appellant, are perused. This Court is of the considered opinion that either of the decision cannot be applied for the simple reason that in both the cases, there was a wordy quarrel, following which the assailant attacked the other party. In the instant case, such a quarrel is not brought forth; but, there was a demand for giving ration rice. Merely because of the refusal, it cannot be a reason for a provocation. It is pertinent to point out that the appellant/accused armed with an aruval, went over there, and she remained unarmed. He has attacked his mother and killed her mercilessly. In such circumstances, the act of the accused cannot, but be only termed as murder, and no reason is made or noticed by the Court to bring the act of the accused down of murder. This Court is of the view that all the contentions put forth by the learned Counsel for the appellant though attractive at the first instance, do not stand the test of law as stated above. Hence, both the decisions cannot be applied to the present facts of the case.

13.In view of the above reasons, this criminal appeal must fail and fails. Accordingly, it is dismissed affirming the conviction and sentence awarded by the Court below.

To

1)The Additional Sessions Judge

(Fast Track Court No.II)

Pattukottai

2)The Inspector of Police

Peravoorani Police Station

in Cr.No.148/2003

Thanjavur District

3)The Public Prosecutor

Madurai Bench of Madras High Court


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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