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Ayyanar v. State through the Inspector - Crl.A.(MD) No.456 of 2005  RD-TN 978 (16 March 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR
Crl.A.(MD) No.456 of 2005
Ayyanar .. Appellant vs.
State through the Inspector
Rajapalayam South Police Station,
Crime No.212 of 2002. .. Respondent Criminal Appeal filed under Section 374 Cr.P.C against the Judgment of conviction and sentence dated 20.7.2004 made in S.C.No.175 of 2003 on the file of the Principal Sessions Judge, Virudhunar District at Srivilliputhur. For appellant : Mr.A.P.Muthupandian
For respondent : Mr.A.Balaguru,
Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM, J) This Criminal Appeal is directed against the judgment dated 20.7.2004 made in S.C.No.175 of 2003 on the file of the Principal Sessions Judge, Virudhunar District at Srivilliputhur. In the said Sessions Case, A.1 and A.2 stood charged under Sections 341, 302 and 323 IPC, tried and found guilty A.1 under Sections 341 and 302 IPC and A.2 under Sections 341 and 323 IPC. In respect of the offence under Section 302 IPC, A.2 was acquitted. A.1 was directed to undergo life imprisonment under Section 302 IPC with a fine of Rs.1,000/- in default to undergo one year simple imprisonment; to undergo one month simple imprisonment by both the accused under Section 341 IPC and to undergo three months' simple imprisonment by A.2 under Section 323 IPC. A.1 was acquitted of the charge under Section 323 IPC. The sentences were directed to run concurrently. Changeling the said judgment of conviction and sentence, the first accused/appellant has brought-forth this Criminal Appeal.
2. The brief facts necessary for the disposal of the appeal can be stated thus:
(a) PW.1 Tmt. Sanjeevi is a resident of Duraisamypuram. She lost her husband and she has no issues. PW.1 has a sister by name Peruma and a brother, who is the second accused herein. A.1 is the son of A.2. A property, pursuant to the loan raised by A.2, was brought for auction as he was unable to redeem it. Therefore, A.2 requested her sister Peruma to repay the loan after selling her lands and redeem the property. Peruma also sold her lands and the sale proceeds received out of the said land was used for redeeming the property. However, the property was in the name of A.2. Hence, Peruma convened a Panchayat and asked A.2 to give a share in that property. In the Panchayat, the property was divided into two and Peruma was in occupation of the property allotted to her. Prior to the occurrence, A.1 tied a dog in the allotted property of PW.1. Hence, PW.1 asked PW.1 to remove the dog from there. A.1 did not heed to her words. Hence, on 23.6.2002 at about 3.30 p.m. when PW.1 and the deceased Mariammal were returning through A.2's house, after giving a complaint to the Police Station, A.1 and A.2 waylaid and attacked them. A.1 attacked the deceased Mariammal with crow bar on her head and A.2 attacked the deceased Mariammal with a stick. Mariammal died in the incident instantaneously due to injuries sustained. In the incident, PW.1, PW.2, and A.1 were injured. (b) At about 4.30 p.m. on 23.6.2002, PW.1 and PW.4 went to Rajapalayam Police Station, where PW.12 the Sub Inspector of Police was on duty. PW.1 gave a oral statement, which was reduced into writing and the Complaint was Marked as Ex.P.1. On the basis of the complaint Ex.P.1, a case came to be registered in Crime No.212/02 under Sections 341, 323, 302 IPC. Ex.P.16, Printed F.I.R. was despatched to the court.
(c) On receipt of the copy of the F.I.R., the Inspector of Police, PW.13 attached to Rajapalayam Police station, took up investigation and proceeded to the scene of occurrence, made an inspection and prepared an Observation Mahazar Ex.P.3 in the presence of the witnesses and prepared rough sketch Ex.P.17. He recovered blood stained earth MO.9 and sample earth MO.10 under the cover of Mahazar Ex.P.18. He conducted inquest on the dead body of Mariammal and prepared an Inquest Report, which was marked as Ex.P.19. A requisition was forwarded for conducting autopsy on the dead body of Mariammal, which was marked as Ex.P.7.
(d) On receipt of the requisition for conducting post-mortem, the Doctor PW.8, attached to Rajapalayam Government Hospital conducted autopsy on the dead body of the deceased Maraimmal and found injuries. He issued post-mortem Certificate, which was marked as Ex.P.8 wherein he has opined that the deceased would appear to have died of skullbone fracture due to injury by blunt instrument and narrow pointed instrument, 18 to 20 hours prior to autopsy. (e) Pending investigation, on 24.6.2002 at about 5.00 p.m., the accused were arrested in the presence of the witnesses. A.1 voluntarily gave a confessional statement and the admissible portion of the same was marked as Ex.P.14 and pursuant to the confession, MO.1 Crow Bar, MO.2 Stick were recovered under cover of Mahazar Ex.P.15 in the presence of witnesses. He also recovered a pant and a full shirt viz., MO.11 and MO.12 from A.1. Thereafter, A.2 was placed under the judicial custody. A.1 was sent to the Government Hospital for treatment. All the material objects were subjected to chemical analysis, which resulted in two reports viz., Chemical Analysis Report Ex.P.12 and Serological Report Ex.P.13.
(f) PW.8 examined A.1 and found injuries as described in the Accident Register Copy. Ex.P.9 is the Accident Register in respect of A.1 wherein the Doctor has opined that the 2nd injury could have caused by a stick. (g) PW.14, the Inspector of Police took up further investigation in the case and on completion of the the investigation, filed a final report against both the accused before the Court and the case was committed to the Court of Sessions, necessary charges were framed and the accused were tried by the Court of Sessions.
3. In order to substantiate the charges levelled against the accused, the prosecution marched 14 witnesses, marked 19 Exhibits and 12 Mos.
4. On completion of the evidence on the side of the prosecution, both the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses and both the accused denied the same as false. No defence witness was examined nor any document was marked.
5. After hearing the arguments advanced by both sides, and on scrutiny of the materials, the trial Court found the appellants/accused guilty and awarded punishments as referred to above. Aggrieved against the said findings, the first accused/appellant has brought-forth this Criminal Appeal.
6. Advancing his arguments on behalf of the appellant/A.1, the learned counsel would submit that, in the instant case, PW.1 to PW.4 are the eye witnesses, and they are closely related to the deceased and if the test of careful scrutiny is applied, their evidence do not stand the scrutiny. The occurrence had taken place at 3.30 p.m. in a day light and that too in a public place. If it be so, independent witnesses could have been marched by the prosecution. In the absence of independent witnesses, an adverse inference has to be drawn against the prosecution.
7. The learned counsel would further add that the ocular testimony was not supported by the medical opinion canvassed and further, the arrest, confessional statement and the recovery of material objects are all nothing but subsequent inventions and introductions by the prosecution.
8. Learned counsel would further add that from the evidence of PW.1, it would be quite clear that there was a wordy altercation and following the same the incident took place in which A.1 was also injured and was given treatment by the Doctor PW.8 and A.R. Copy is Ex.P.9 in that regard.
9. The Court heard the learned Addl.Public Prosecutor appearing for the State on the above contentions and paid its anxious consideration on the rival submissions made and also perused the recorded evidence, both oral and documentary.
8. It is not a fact in controversy that the deceased Mariammal died in the incident as narrated above. The post-mortem Doctor, PW.8, who conducted autopsy on the dead body of the deceased Mariammal has opined that the deceased would appear to have died of skull bone fracture due to injuries and Ex.P.8 is the Post-Mortem Certificate in that regard. The appellants have not disputed the cause of death of the deceased Mariammal at any stage of the proceedings before the trial Court. Thus, there is no impediment for the Court to hold that the deceased Mariammal died out of homicidal violence and so recorded.
9. In the instant case, the eye witnesses PW.1 and PW.2 were injured and they were examined and given treatment by the Doctor PW.7 as out-patients. Ex.P.5 is the A.R.Copy in respect of PW.1. Ex.P.6 is the A.R.Copy in respect of PW.2. In a given case, where injured are the eye-witnesses, their evidence cannot be discarded on the ground of relationship.
10. In the attack, the deceased Mariammal died instantaneously. A.1 attacked the deceased with a crow bar on her head, which was corroborated by the medical evidence also. However, though A.2 had participated in that incident, he had attacked by a stick only and the trial Court was of the opinion that, he did not have common intention to cause the death. Hence, the act of the second accused did not fall under the penal provisions of murder. However, A.2 was found guilty under Sections 341 and 323 IPC.
11. In the instant case, the recovery of the weapon of crime viz., Crow Bar and stick have stood the test of scrutiny as brought-forth by the prosecution. The trial court has correctly found that it was the first accused who attacked the deceased Mariammal on head with a crow bar, which was a fatal injury and has caused instantaneous death. The contentions put-forth by the learned counsel for the appellant do not merit acceptance.
12. Coming to the question of nature of the act of the accused/appellant, the Court is able to see some force in the contention put-forth by the learned counsel for the appellant. According to the prosecution, a panchayat was convened before the occurrence, in respect of a house site and the property was divided between the accused and Peruma and subsequently, the dog of the accused was tied in the property of Peruma despite her request not to tie the dog there, and hence, there was a wordy quarrel. In the instant case, as could be seen A-1 also sustained injury. He was also examined by the Doctor, who has also issued Accident Register Copy, Ex.P.9. This would be indicative of the fact that A-1 was also attacked at the time of occurrence and at the time of occurrence, there was a wordy altercation, following which, the occurrence had taken place. The act of the first accused could be termed as culpable homicide not amounting to murder for the simple reason that the accused had no intention to cause the death but it was only due to sudden provocation. But, the first accused has got knowledge that by attacking so with that weapon, the death would cause.
13. For all the reasons stated above, in the instant case, the act of the accused would only fall under the provisions of Section 304 (2) IPC and the punishment of five years Rigorous Imprisonment would meet the ends of justice. Accordingly, the conviction and sentence of the lower Court u/s. 302 IPC are modified and instead, the appellant is convicted u/s. 304 (2) IPC and sentenced to undergo five years Rigorous Imprisonment. The period of sentence already undergone by the appellant shall be ordered to be given set off. The fine amount imposed by the lower Court u/s. 302 IPC shall be treated as fine amount u/s. 304 (2) IPC.
14. With the above modification of conviction and sentence, the Criminal Appeal is dismissed.
1.The Principal Sessions Judge,
Virudhunar District at Srivilliputhur.
2.The Inspector of Police,
Rajapalayam South Police Station,
3.The Additional Public Prosecutor,
Madurai Bench of
the Madras High Court,
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