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PETHAN versus STATE THROUGH

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Pethan v. State through - CRIMINAL APPEAL(MD)NO.356 OF 2005 [2007] RD-TN 970 (15 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 15/03/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

CRIMINAL APPEAL(MD)NO.356 OF 2005

Pethan .. Appellant Vs.

State through

the Inspector of Police,

Vathalagundu Police Station,

Dindigul District

Crime No.119 of 2000 .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional District and Sessions Judge (Fast Track Court), Dindigul made in S.C.No.52 of 2001, dated 27.11.2003. For Appellant : Mr.C.Raja Kumar

For Respondent : Mr.S.P.Samuel Raj, APP

:JUDGMENT



(The judgment of the court was made by M.CHOCKALINGAM, J.) The sole accused in a case of murder, who stood charged under Sections 302, 307, 326 and 323 IPC, tried, found guilty under Sections 302, 307 and 324 IPC and awarded life imprisonment under Section 302 IPC, 10 years RI under Section 307 IPC and 3 years RI under Section 324 IPC and the sentences were directed to run concurrently by way of judgment made in S.C.No.52 of 2001 on the file of the learned Additional District and Sessions Judge, Fast Track Court, Dindigul, has challenged the conviction and sentence in this appeal.

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

a)P.Ws.1 to 7 were all the residents of Viralipatti Colony. The accused was the Thalaiyari of the said village during the relevant time. P.W.16 is the wife of the accused. P.Ws.2 and 3 were injured in the incident. One Lakshmanan died in that incident. During the relevant time, allotment of houses was made in the colony to different residents at Viralipatti. Villagers, including P.Ws., felt that there was favouritism exercised by the accused in allotting the houses. Apart from that, he was also demanding Rs.500/- or Rs.1000/- from the allottees. The deceased Lakshmanan and P.W.2 Raja were not amenable for the same and they were not ready to make any payment and they further informed the accused that they would meet the Tahsildar and get necessary relief. Thus, the accused was aggrieved over the same.

b)On the date of occurrence, namely on 9.3.2000, the villagers around 10 in number, went over to the nearby village to take the bride to the village. Accordingly, all of them returned along with the bride. P.W.2 and the deceased were also travelling in the van. All of them came to the Colony and got down from the Van and the van had just left. At that time, the accused along with his wife, P.W.16, was sitting in front of the house of Devaraj. When all of them proceeding, there was a wordy quarrel. Immediately, the accused took the knife from his waist and attacked Lakshmanan in his abdomen and he fell down. While P.W.2 went to the rescue of Lakshmanan, the accused also attacked him on his left side abdomen and left knee. When P.W.3, the wife of P.W.2 also intervened and tried to snatch the knife, she also sustained injury on her left hand. When P.W.16 made an attempt to take her husband, he pushed her down and the accused fled away from the place of occurrence. The entire incident was witnessed by P.Ws.1, 4 to 7.

c)The seriously injured Lakshmanan died. Immediately, P.W.2 and P.W.3 were taken to the Government Hospital, Vathalakundu, where P.W.10, the Doctor, who was on duty at 2.30 a.m. on 10.3.2000, admitted P.W.2 and examined him. She has given treatment and noted the injuries. Ex.P.5 is the wound certificate of P.W.2. For further treatment, P.W.2 was referred to Madurai Government Hospital. P.W.10, the Doctor also examined P.W.3 and noted the injuries. Ex.P.6 is the wound certificate of P.W.3. P.W.16 was also medically examined by P.W.10 at 4.00 a.m. and the accident register copy was marked as Ex.P.7. d)P.W.1 proceeded to the respondent police station, where P.W.11, the Head Constable, was on duty. P.W.1 gave Ex.P.1, the report to him, on the strength of which, a case came to be registered against the accused in Crime No.119 of 2000 under Sections 324, 307 and 302 IPC. Ex.P.10, the FIR was despatched to the Court.

e)On receipt of the copy of the FIR, P.W.15, the Inspector of Police, took up the investigation, proceeded to the place of occurrence and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.12, the rough sketch. He has also recovered the material objects from the place of occurrence under a cover of mahazar. Further, he conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.13, the inquest report. f)Pursuant to the requisition given, the dead body of the deceased was subjected to post-mortem by P.W.10, the Doctor. She has issued Ex.P.8, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained about 12 to 16 hours prior to autopsy.

g)The accused surrendered before the Judicial Magistrate, Thirumangalam on 15.3.2000. An application was filed for police custody, but the same was dismissed. All the M.Os recovered from the place of occurrence and from the dead body of the deceased were subjected to chemical analysis by the Forensic Science Department, which resulted in two reports. Ex.P.15 is the Chemical Analyst's report and Ex.P.16 is the Serologist's report. The Investigator completed the investigation and 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 examined 17 witnesses and relied on 17 exhibits and 10 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned procedurally under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. On the side of the accused, though no witness was examined, only one document was marked as Ex.D.1. The trial court heard the arguments advanced on either side and took the view, after considering the submissions made and scrutinising the materials, that the prosecution has proved the case in respect of Sections 302, 307 and 324 IPC and awarded punishments as referred to above. Hence, this appeal at the instance of the appellant.

4.The learned counsel, in his sincere attempt of assailing the judgment of conviction and sentence imposed by the lower court, would submit that the prosecution has not proved its case beyond reasonable doubt; that it is true, the prosecution has examined not only P.Ws.2 and 3, as injured witness, but also P.Ws.1,4 to 7 and also P.W.16 as eyewitnesses; that P.W.16 has turned hostile; that insofar as the eyewitnesses are concerned, there are lot of discrepancies in their evidence on material particulars, which would go to show that such an occurrence could not have taken place at all; that apart from that, all the witnesses are, inter se, related to each other; that they came in a van to take the bride on that day; and that this would be indicative of the fact that they all have formed one group and acted against the interest of the accused, who was the Thalaiyari in the said village and he has actually acted in the interest of the colony.

5.The learned counsel would further submit that the occurrence has taken place, according to the prosecution, in front of the house of one Devaraj, where the accused and his wife, namely P.W.16, were sitting; that if to be so, the said Devaraj should have been examined, but the prosecution has not examined; that had he been examined, the truth would have come out; that the non examination of the said Devaraj leads to take an adverse inference by the Court; that further there was distance between the temple and the persons, who have got down from the van and also the occurrence place and thus, the said occurrence could not have taken place as put forth by the prosecution; that the medical evidence also did not support the ocular testimony; that P.W.16 has turned hostile; that P.W.16 has categorically admitted that P.Ws. attacked her and the accused also and in that transaction, the house of the accused was completely damaged and thus, it would be indicative of the fact that the aggressors were the P.Ws. and not the accused, but the lower court has not considered all these aspects of the matter; that even assuming that the prosecution has proved the case that it was the accused, who attacked the deceased and P.Ws.2 and 3 and caused the death of the deceased, the act of the accused would not attract the penal provisions of murder or attempt to murder; that even as per the evidence, there was a quarrel that preceded; that according to the evidence of P.W.16, she also sustained injuries and medical opinion was also produced in that regard; that according to the evidence of P.W.6, there was a clash between them and in that transaction, the accused has attacked the deceased and P.Ws.2 and 3 and therefore, due to sudden quarrel and heat of exchange of words and due to provocation, the accused has acted so and this would not attract the penal provisions of murder and hence, it has got to be considered by this Court.

6.Heard the learned Additional Public Prosecutor on the above contentions.

7.The Court has paid its anxious consideration on the submissions made.

8.It is not the fact in controversy that one Lakshmanan was attacked by the accused at the time and place as put forth by the prosecution. Following the inquest conducted by the Investigating Officer, the dead body was subjected to post-mortem by P.W.10, the Doctor. She has issued Ex.P.8, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained about 12 to 16 hours prior to autopsy. Apart from that, the prosecution has examined P.Ws.1 to 7, who are the eyewitnesses. Out of them, P.Ws.2 and 3 were the injured witnesses. Hence, the prosecution has proved the fact that the said Lakshmanan died out of homicidal violence. It is also pertinent to point out that the appellant/accused never questioned this fact at any stage of proceedings. Hence, it has got to be recorded that the deceased died out of homicidal violence.

9.In order to substantiate the charges of murder, attempt to murder and causing injury to P.W.3, which were levelled against the appellant/accused, the prosecution has examined P.Ws.1 to 7 and also P.W.16. P.W.16 has turned hostile, who is none else than the wife of the accused. Out of P.Ws.1 to 7, P.Ws.2 and 3 were not only the eyewitnesses, but also injured witnesses. In a given case like this, where the eyewitnesses are the injured also, without sufficient reason or cause, their evidence should not be discarded. Both the injured witnesses were medically treated by P.W.10, the Doctor and their wound certificates were also produced by the prosecution, wherein they have spoken about the place and time of occurrence and also the fact that one known person has attacked them. Thus, the evidence of both the injured witnesses, namely P.Ws.2 and 3 stood fully corroborated by the evidence of P.Ws.1, 4 to 7 and has brought home the guilt of the accused. The post-mortem certificate issued by the post-mortem Doctor also was in full corroboration with the ocular testimony. From the evidence of eyewitnesses, it would be quite clear that there was previous enmity between the accused party and the deceased party and all the persons came in a van and got down and the accused stabbed the deceased on his abdomen and when P.W.2 intervened, he was also attacked and P.W.3 when intervened and snatched the knife, she also sustained injuries and thus, the prosecution through the eyewitnesses and in particular, P.Ws.2 and 3, who were injured, and also through the medical evidence has proved the fact. Under these circumstances, the contentions put forth by the learned counsel for the appellant do not merit acceptance at all. The lower court has marshalled the evidence properly and considered the same in its proper perspective and has also accepted the same. Therefore, it has got to be accepted by this Court also. The factual findings that the accused attacked the deceased and caused his death and also attacked P.Ws.2 and 3 were found to be correct.

10.Coming to the question of nature of the act of the accused, the Court is able to see force in the contentions put forth by the learned counsel for the appellant. In the instant case, even as per the prosecution case, the accused was the Thalaiyari of the village and therefore, he thought that his head was high and all of them should respect his words, to which course, the villagers were not amenable. There was an allotment of houses in the colony and according to the villagers, he got partisan attitude and he shows favouritism to certain persons. The further grievance of the villagers was that the accused demanded money for allotment of houses. The deceased and P.W.2 informed the accused that they would meet the Tahsildar and inform the same and thus, they were all in inimical terms.

11.On the date of occurrence, at 12.00 midnight, P.Ws., including the deceased Lakshmanan, came in a van along with the bride and all of them got down. The accused was sitting along with his wife in front of the house of one Devaraj. Immediately, on seeing them, there was a quarrel that ensued, which would be quite evident from the evidence. P.W.16 was also examined by the prosecution. According to her, she also sustained injuries and this injury was caused only at the time of the transaction in question. It is not the case of the prosecution that P.W.16 sustained injury in some other place. According to the evidence of P.W.6, there was a clash between them. Therefore, due to provocation and quarrel, the accused has attacked the deceased on his abdomen and caused his death and the accused has also attacked P.W.2, when he intervened and when P.W.3 snatched the knife, she also sustained injuries. Thus, the act of the accused was neither intentional nor pre-mediated, but it was due to sudden quarrel and provocation and hence, the act of the accused would attract the penal provisions of Section 304(I) IPC and the punishment of 7 years RI would meet the ends of justice.

12.Accordingly, the conviction and sentence imposed by the trial court on the accused under Section 302 IPC are modified and instead, he is convicted under Section 304(I) IPC and is sentenced to undergo 7 years RI. In respect of the conviction under Section 307 IPC, taking into consideration the facts and circumstances of the case, the conviction is sustained, but however, the sentence of 10 years RI is reduced to 5 years RI, which would meet the ends of justice. Insofar as the conviction under Section 324 IPC is concerned, the conviction is sustained and the punishment of 3 years RI is reduced to 2 years RI. The period of sentence already undergone by the accused/appellant is ordered to be given set off. The sentences are directed to run concurrently.

13.With the above modification in conviction and sentence, this appeal fails and the same is dismissed.

vvk

1.The Additional District and

Sessions Judge,

Fast Track Court,

Dindigul.

2.The Inspector of Police,

Vathalagundu Police Station,

Dindigul District.

3.The Addl. 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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