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Sekar alias Chandhraseka v. State by Inspector of Police - Criminal Appeal (MD) No.1814 of 2003  RD-TN 1090 (23 March 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23/03/2007
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR
Criminal Appeal (MD) No.1814 of 2003
Sekar alias Chandhrasekar .. Appellant
State by Inspector of Police,
North Police Station,
Tuticorin. .. Respondent Appeal filed against the conviction and sentence passed by the Principal Sessions Judge, Tuticorin in s.C.No.53/2003 dated 21.7.2003. For Appellant : Mr.A.W.D.Tilak
For Respondent : Mr.A.Balaguru
(Judgment of the Court was delivered by M.CHOCKALINGAM,J.) Challenging the judgment of the Principal Sessions Judge, Tuticorin made in S.C.No.53/2003, the sole accused who stood charged, tried and found guilty under Sections 341 and 302 IPC and awarded one month simple imprisonment in respect of the first charge and life imprisonment in respect of the second charge, has brought this appeal before this Court.
2.The short facts necessary for the disposal of this appeal can be stated thus:
(a)P.W.1 is the father and P.W.2 is the mother of the deceased Manikandan. The accused belonged to the same place and is also the friend of the deceased. On the day of occurrence, i.e., on 6.1.2002, P.W.1 and P.W.2 were in the house. The accused came over there and asked about the deceased Manikandan. P.Ws.1 and 2 informed the accused that the deceased Manikandan went out. The accused informed them that the deceased beat his brother and that he would see to it. P.W.1 pacified the accused telling that they were friends and therefore, he need not go to such extent. Thereafter, the deceased came home. P.W.1 informed the deceased that the accused came there and said about the incident. Immediately the deceased replied that when he was riding his two wheeler, some filthy water spilt on the brother of the accused and the brother of the accused used abusive language and hence, aggrieved over the same, the deceased beat him. After hearing the incident that took place, P.W.1 thought it fit to pacify them and so, he took his son, the deceased Manikandan, to the place of the accused. When they were crossing the Venkatesh Auto Electricals Workshop, where P.Ws.6 and 7 were employed, at about 6.00 p.m. the accused was coming there. The accused had M.O.1, knife in his hand. He immediately began to attack the deceased. The deceased immediately warded off and in that course, the weapon fell down and the accused sustained injuries. The accused again took the knife and stabbed the deceased on his chest and it was witnessed by P.W.1 and also by P.W.2, who came over there. The accused fled away from the place of occurrence. (b)Immediately P.W.1 took the deceased in an auto rickshaw to Tuticorin Medical College Hospital, where P.W.3, the doctor, attached to the said hospital, who was on duty declared the deceased dead and the Accident Register copy is marked as Ex.P.3. An intimation was given to the respondent Police Station through Out Post Police Station and P.W.13, the Sub Inspector of police who was on duty, proceeded to Tuticorin Medical College Hospital, and recorded the statement of P.W.1 which is marked as Ex.P.1. He came back to the Station at about 20.30 hours and registered a case in Crime No.19/2002 under Sections 341 and 302 IPC. The Express F.I.R., Ex.P.17 was despatched to the Court. P.W.14, the Inspector of Police, took up the investigation, proceeded to the scene of occurrence, made an inspection in the presence of witnesses, prepared Ex.P.13-the Observation Mahazar and also Ex.P.18-the rough sketch. He conducted inquest on the dead body in the presence of witnesses and panchayatdars, and prepared Ex.P.19-the Inquest Report and the dead body was sent for autopsy along with Ex.P.4, the requisition slip. P.W.4, the doctor, attached to Tuticorin Medical College Hospital, conducted autopsy on the dead body and has opined in Ex.P.5, the postmortem certificate, that the deceased would appear to have died out of shock and haemorrhage and injuries to the vital organs and would have died 16 to 18 hours prior to autopsy.
(c)Pending investigation, the Investigating Officer arrested the accused on 9.1.2002. The accused voluntarily came forward to give a confessional statement and the same was recorded in the presence of witnesses. Pursuant to the confessional statement, the accused produced M.O.1, the knife, under a cover of Attakshi, which is marked as Ex.P.16. The accused was sent for judicial remand. When the accused was found with injuries, he was sent for medical treatment. P.W.11, the doctor, attached to Tuticorin Medical College Hospital, treated the accused on 9.1.2002 and the copy of the Accident Register in that regard is marked as Ex.P.12. All the material objects recovered from the place of occurrence and from the dead body, and also the blood stained knife, M.O.1, produced by the accused, were subjected to chemical analysis by the Forensic Sciences Department pursuant to a requisition forwarded by the Inspector through the concerned Court which resulted in two reports, viz., the Chemical Analyst's Report-Ex.P.8 and the Serologist's Report-Ex.P.9 respectively. (d)On completion of the investigation, the investigating officer filed the final report and the case was committed to Court of Sessions. Necessary charges were framed. In order to substantiate its case, the prosecution marched 14 witnesses and also relied upon 19 exhibits and 6 material objects. (e)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. The Trial Court heard the arguments advanced on either side, scrutinised the materials, took the view that the prosecution has proved its case beyond reasonable doubt, found the accused guilty as per both the charges and awarded the sentence as referred to above, which is the subject matter of challenge before this Court in this appeal.
3.Advancing his arguments on behalf of the appellant/accused, Mr.A.W.D.Thilak, learned Counsel inter-alia made the following submissions: (a)In the instant case, the commencement of the first occurrence, according to the prosecution, was prior to 6.00 p.m. when the deceased went out in his motor bike and that time when filthy water spilt on the brother of the accused, the same was questioned by him and it was the deceased who beat him and if this was the origin of the entire occurrence, the prosecution should have examined the brother of the accused. But, it had not done so and thus, the origin of the occurrence is not made known to the Court. (b)Added further, the learned counsel that the occurrence has taken place on 6.1.2002 at 6.00 p.m. But, the F.I.R. has come into existence only at 8.00 p.m. and has reached the Court at 10.00 p.m. on the same day. From the place of occurrence, the North Police Station, Tuticorin, is situated only just 2 kilometres away and the Court from the Police Station is nearby and thus, a delay is noticed at vital point of time in registration of the case and also the F.I.R. reaching the Court. Thus, what was before the Court is the embellished version. The Trial Court should have doubted the entire prosecution case. (c)Learned counsel also submitted that P.Ws.6 and 7 were the independent witnesses since they were working in the workshop in front of which the occurrence has taken place. But, they have turned hostile. The only evidence what was available to the prosecution was that of P.Ws.1 and 2 and they are closely related to the deceased. Under such circumstance, the test of careful scrutiny must be applied. If applied, the evidence will not stand the test and hence, the lower Court should have rejected the testimony of P.Ws.1 and 2. (d)The learned counsel for the appellant further submitted that P.Ws.1 and 2 were not at all present at the scene of occurrence. In order to show as if they were present, the prosecution has come out with a story that P.W.1 took the deceased to the place of the accused in order to pacify the situation and this is nothing but a story introduced and the prosecution has failed in all aspects of the matter. But, the Lower Court has found the accused guilty. (e)Yet another contention put forth by the learned counsel for the appellant is that even assuming that the prosecution has proved the fact that it was the accused who stabbed the deceased to death, the act of the accused would not attract the penal provision of murder. But, it will attract only culpable homicide not amounting to murder and the entire prosecution case would clearly indicate that the deceased was the aggressor and the accused also sustained injury in that occurrence and was medically examined by P.W.11, the doctor, who issued the Accident Register, Ex.P.12. All would go to show that there was a wordy altercation and sufficient provocation for the accused to act so. The injuries sustained by the accused were not even whispered in Ex.P.1 and also the occurrence witnesses have not spoken about the same. All would go to show that even assuming the act of the accused is proved, it would not attract the penal provision of murder. Hence, the learned counsel for the appellant submitted that benefit has got to be given to the accused.
4.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and made a thorough scrutiny of the materials available.
5.In the instant case, it is not a fact in controversy that the deceased Manikandan, the son of P.Ws.1 and 2, following an incident that took place at about 6.00 p.m. on 6.1.2002, was taken to Tuticorin Medical College Hospital where he was medically examined and was declared dead by P.W.3, the doctor, attached to the said hospital. Following the inquest conducted by the Investigating Officer, P.W.13, the Sub-Inspector of Police, the dead body was subjected to postmortem. P.W.4, the doctor, attached to the said hospital conducted the postmortem and opined in Ex.P.5, the postmortem certificate, that the deceased would appear to have died out of shock and haemorrhage due to injuries on the vital organs. The fact that the deceased died out of homicidal violence was never questioned by the accused at any stage of the proceeding and hence, without any impediment it can be factually recorded so.
6.In order to substantiate that it was the accused who stabbed the deceased to death, the prosecution has examined 4 witnesses out of whom, P.Ws.1 and 2 were the parents of the deceased and P.Ws.6 and 7 were independent witnesses who were actually working in the Electrical shop, in front of which the occurrence has taken place. Unfortunately, P.Ws.6 and 7 have turned hostile and thus, it would be quite clear that the Investigator, at the time of investigation, has examined the independent witnesses also. But, the available witnesses before the Court were P.Ws.1 and 2.
7.True, it is, P.Ws.1 and 2 who are the parents of the deceased. Merely because of the reason that they are close related to the deceased, their evidence, cannot be rejected. The Court is unable to notice any circumstance or to see any reason to reject their testimony. P.W.1 has categorically spoken to the fact that he took his son, the deceased to the place of the accused to pacify the accused not to proceed further and on the way the occurrence has taken place. He has also narrated as to how the occurrence has taken place and thus, P.W.2 who was coming 100 feet nearby to the occurrence was able to see the occurrence. It was P.W.1, within a short span of time has narrated the entire incident to P.W.13, the Sub-Inspector of Police who reduced it into writing which is marked as Ex.P.1 on the strength of which a case came to be registered. The ocular testimony given by P.Ws.1 and 2 stood fully corroborated by the medical evidence through P.W.4, the doctor, attached to Tuticorin Medical College Hosptial, who conducted the postmortem and issued Ex.P.5, the postmortem certificate.
8.Yet another circumstance against the accused is the recovery of the weapon of crime from the accused pursuant to his confession and the witness has also been examined to that effect. Under such circumstance, the contention put forth by the learned counsel for the appellant requires consideration. According to learned counsel for the appellant, the non examination of the brother of the accused was fatal to the prosecution. The Court is of the considered opinion that the entire incident is fully narrated and the act of the deceased that it was he who first beat the brother of the accused under what circumstance is also fully spelt out by the prosecution which leaves no doubt. Even if the brother of the accused was examined before the Court below, he could not have spoken anything more. But, all those facts are placed before the Court below and the prosecution was fair enough to prove its case.
9.The second contention put forth by the learned counsel for the appellant that there was a delay in registration of the case and the F.I.R. reaching the Court has got to be discountenanced for the simple reason that the occurrence had taken place at about 6.00 p.m. Immediately, the deceased was taken to the hospital where he was declared dead by P.W.3, the doctor, attached to the hospital. An intimation was sent to the North Police Station and P.W.13, the Sub-Inspector of police, went over to the place of occurrence, and recorded the statement of P.W.1. P.W.2, who felt unconscious for a short while after seeing the incident, came to conscious and gave a statement and the same was also recorded by P.W.13 and thus, after the registration of the case, procedural formalities have got to be followed and hence, the F.I.R. reached the Judicial Magistrate at about 10.00 p.m. on the same day. All would go to show that there was no delay at all. The contentions put forth by the learned counsel for the appellant do not carry any merit whatsoever. Hence, that part of the prosecution case that it was the accused who attacked the deceased at the place and time of occurrence and caused instantaneous death is proved.
10.Coming to the nature of the act of the accused, the Court is able to see sufficient force in the contention put forth by the learned counsel for the appellant. Even as per the prosecution case, earlier an incident has taken place in which the deceased was going in his motor bike and on the way, the filthy water spilt on the brother of the accused. Immediately he was questioned by the brother of the accused. The deceased beat him following certain abusive language spoken to by the brother of the accused. It was P.W.1 who took his son to the place of the accused in order to pacify the accused. At this juncture, within a short span of time, the occurrence has taken place. When the accused was about to attack the deceased, the deceased attempted to ward off and the weapon fell down causing injury to the accused. Immediately, it would have passed in the mind of the accused that there was all possibility for the deceased to pick up the knife and attack him and in that course of transaction, due to provocation that passed in the mind of the accused who sustained injury, took the knife and stabbed the deceased. This Court is able to see that there was sufficient circumstance indicating that there was sufficient provocation for the accused to act so and the act of the accused is neither premeditated nor intentional, but, he acted due to provocation and thus, the act of the accused would not attract the penal provision of murder, but only culpable homicide not amounting to murder.
11.Under such circumstances, this Court is of the considered view that it is a fit case where the conviction and sentence under section 302 IPC can be modified to one under section 304(i) IPC and awarding seven years of rigorous imprisonment would meet the ends of justice.
12.Hence, the conviction of the sole accused/appellant for the offence under Section 302 IPC and the sentence of life imprisonment, are modified to one under Section 304(i) of IPC and punishment of seven years rigorous imprisonment is awarded. The sentence already undergone by the appellant shall be given set off. The conviction and sentence under Section 341 IPC are sustained and both the sentences shall run concurrently.
13.With the above modification, the criminal appeal is dismissed. To
1. The Principal Sessions Judge, Tuticorin.
2. The Inspector of Police,
North Police Station,
3. The Additional Public Prosecutor,
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