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PAUL PANDI versus STATE OF TAMIL NADU

High Court of Madras

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Paul Pandi v. State of Tamil Nadu - Criminal Appeal No.881 of 2004 [2007] RD-TN 989 (16 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 16/03/2007

CORAM:

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

and

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

Criminal Appeal No.881 of 2004

Paul Pandi,

S/o.Nallaperumal ... Appellant

Vs

State of Tamil Nadu,

Rep.by Inspector of Police,

Thirumangalam Town Police Station,

Madurai.

Crime No.263 of 2003 ... Respondent Appeal under Section 374 of the Code of Criminal Procedure against the judgment, dated 25.03.2004, of the learned Principal Sessions Judge, Madurai District in S.C.No.599 of 2003.

For Appellant : Mr.A.P.Muthupandian For Respondent : Mr.P.N.Pandidurai, Addl.Public Prosecutor. :J U D G M E N T



(Judgment of the Court was delivered by M.CHOCKALINGAM,J) Challenging the judgment of the Principal Sessions Court, Madurai District, made in S.C.No.599 of 2003, convicting him under Section 302 IPC and sentencing to undergo life imprisonment and also to pay a fine amount of Rs.1,000/-, in default to undergo one year rigorous imprisonment, the sole accused in the said case has brought-forth this appeal.

2.The brief facts necessary, sans unnecessary facts, for the disposal of the appeal can be stated thus:

(a)P.W.1 Kaluvayee is the mother of the deceased Kasiammal and P.W.4 Moorthy is her brother. The accused is the husband of the deceased. The accused already got married and had two children and there was an accusation against him that previously he murdered the husband of P.W.1 and he developed intimacy with the daughter of P.W.1 Kasiammal, the deceased and married her also. Through that marriage, they have got one child and they were living together and it was the usual practice of the accused to come home in a drunken mood, use filthy language against his wife Kasiammal, the deceased and also treat her cruelly suspecting her fidelity.

(b)While the matter stood thus, on the date of occurrence, namely 11.06.2003, at about 11.00 p.m., when the deceased Kasiammal, her brother P.W.4 and her mother P.W.1 were all returning to their house at Kappalur after their work and proceeding the madathu pillaiar temple, the accused came over there, abused her wife in filthy language and when it was questioned, he took out a knife hidden in his waist and stabbed her. When the accused started to run from the place of occurrence, P.W.4 chased him and gave a cut on the left hand of the deceased with a small billhook which he was having at that time and even then the accused managed to escape from there. Immediately, P.W.4 brought an auto, in which they took the deceased to Tirumangalam Government Hospital, where P.W.2, the doctor, examined her and gave treatment and at that time the deceased informed P.W.2 that she was stabbed by her husband at about 11.00 p.m. and despite treatment, she died. P.W.2 gave an intimation to the police and Ex.P-2 is the Accident Register issued to the deceased. (c)On receipt of intimation from the Hospital, P.W.11, the Sub- Inspector of Police attached to the respondent police station, proceeded to the Hospital, obtained the statement of P.W.1, which is marked as Ex.P-1, at about 1.15 a.m. on 12.06.2003, returned to the police station at about 2.00 a.m. and registered a case in Crime No.263/2003 under Section 302 IPC based on Ex.P-1, the complaint given by P.W.1, and prepared Ex.P-9, the first information Report. Ex.P-1 and Ex.P-9 were sent by P.W.11 to the Court and copies of FIR were sent to higher officials.

(d)P.W.12, the Inspector of Police, on receipt of a copy of Ex.P-9 FIR, took up the investigation, proceeded to the place of occurrencde at about 3.30 a.m., made an observation in the presence of witnesses and prepared Ex.P-5, the observation mahazar, attested by P.W.6 and another. He also prepared Ex.P- 10, the rough sketch. From the place of occurrence, P.W.12 recovered M.O.2, the bloodstained tar earth, M.O.3, the sample tar earth, M.O.7, the wrist watch and M.O.8, the key under Ex.P-6 mahazar attested by P.W.6 and another. Thereafter, P.W.12 went to Tirumangalam Government Hospital, conducted an inquest on the body of the deceased in the presence of witnesses and panchayatdars and prepared Ex.P-11, the inquest report. Following the same, he gave a requisition to the hospital for conducting autopsy on the body of the deceased. (e)P.W.3, the doctor attached to Tirumangalam Government Hospital, conducted postmortem on the body of the deceased at 12.15 p.m. on 12.06.2003 and gave Ex.P-4, the postmortem certificate, opining that the deceased would appear to have died of shock and haemorrhage due to injury to the left side lung, 12 to 24 hours prior to autopsy. After postmortem, P.W.10, the constable, collected M.Os.4 to 6, the personal wearing apparels of the deceased and deposited the same in the police station.

(f)Pending investigation, P.W.12, the investigator, arrested the accused on 14.06.2003, at about 4.30 p.m., in the presence of P.W.7 and another and when enquired, the accused volunteered to give a confessional statement, admissible portion of it is marked as Ex.P-7, pursuant to which the accused produced M.O.1 knife, the weapon of crime, and the same was recovered under Ex.P-8 mahazar attested by P.W.7 and another. Thereafter, P.W.12, brought the accused to the police station, subjected him to medical examination and thereafter sent to him to judicial custody.

(g)P.W.12, the investigator, gave Ex.P-12 requisition to the court to subject the material objects recovered from the place of occurrence, from the body of the deceased and recovered pursuant to the confessional statement of the accused and accordingly they were placed before the Forensic Department through Ex.P-13, the letter of the Court, which resulted in three reports, namely Ex.P- 14, the Chemical Examiner's Report, Ex.P-15, the soil report and Ex.P-16, the serologist's report. On completion of the investigation, P.W.12, the investigator, filed the final report before the Judicial Magistrate Court concerned.

3.The case was committed to the Court of Session and necessary charge was framed. To substantiate the charge levelled against the accused, the prosecution marched 12 witnesses as P.Ws.1 to 12 and relied on 16 documents ,marked as Exs.P-1 to P-16 as well as eight material objects, marked as M.Os.1 to 8. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused denied them flatly as false. No defence witness was examined. The trial court heard the arguments advanced on either side, scrutinised the materials available and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty as per the charge framed, convicted him thereunder and imposed punishment as referred to earlier. Hence this appeal.

4.Advancing his arguments on behalf of the appellants, the learned counsel for the appellant/accused made the following submissions. (a)In the instant case, according to prosecution, P.Ws.1 and 4 are eye-witnesses to the occurrence but, their evidence has got to be rejected for the reason that they are close relatives of the deceased and further their evidence of P.Ws.1 and 4 has also got to be rejected as there is lot of discrepancies. Further, as per the prosecution case, P.W.4 attacked the accused but, at the time of questioning under Section 313 Cr.P.C. the accused has stated that as soon as he was attacked, he rushed to the police station and gave a complaint describing in detail what had happened and a case also came to be registered but, the police believed the complaint given by P.W.1 and arrested him and the said statement would indicate that the police suppressed the fact of the complaint given by the accused describing the true facts and the suppression of the same is fatal to the prosecution case.

(b)Further, according to the prosecution, the occurrence has taken place in a public place and there are number of houses and in such a case, there would have been

number of eye-witnesses present but, none of them were examined and non- examination of independent witnesses was fatal to the prosecution case. Further the medical opinion, which was canvassed by the prosecution through P.W.3, the postmortem doctor, cannot be said to be in support of the prosecution, since the narration of attacks by P.Ws.1 and 4 did not tally with the injuries found mentioned in Ex.P-4, the postmortem certificate. The learned counsel would further submit that in the instant case the ocular testimony of P.Ws.1 and 4, which was not supported by medical evidence, did not bring forth the case of the prosecution.

(c)Learned counsel added further that the arrest of the accused and recovery of M.O.1 knife pursuant to the alleged confessional statement given by the accused was nothing but a planted one to suit the prosecution case. According to him, in a given case like this, when the accused himself has gone to the police station immediately after the occurrence and gave a complaint narrating what had happened, the prosecution has come forward with the false story of arrest of the accused, recording of the alleged confessional statement and recovery of M.O.1 knife and therefore that part of evidence canvassed by the prosecution has got to be rejected. In short, in can be said that no evidence is available to the prosecution to prove its case beyond reasonable doubt. (d)Advancing his further arguments, the learned counsel would submit that even assuming that the prosecution has successfully proved the fact that it was the accused who attacked the deceased at the time and the place of the occurrence as put-forth by it and caused her death as a consequence, the act of the accused would not attract the penal provision of murder as could be seen from the evidence of P.W.4 that there was a quarrel preceded and in that quarrel the accused has acted and thus the act of the accused would amount to only culpable homicide not amounting to murder and hence this has got to be considered by this Court.

5.The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions.

6.The Court paid its anxious consideration to the submissions made on either side and also made a thorough and careful scrutiny of the available materials.

7.In the instant case, it is not the fact in controversy that one Kasiammal, daughter of P.W.1, died out of homicidal violence. Following the incident that took place at 11.00 p.m. on 11.06.2003, Kasiammal was taken to Tirumangalam Government Hospital and despite treatment she died. Following the inquest by P.W.12, the investigator, the body was subjected to postmortem by P.W.3, the doctor attached to Tirumangalam Government Hospital and he has opined in Ex.P-4, the postmortem certificate, that the deceased would have died of shock and haemorrhage due to the injury to the left side lung. Thus, the prosecution has proved the fact that the deceased died due to homicidal violence. Apart from this, the accused has never questioned the said fact at any stage of the proceedings and hence, without any difficulty, it could be recorded so.

8.In order to substantiate its case that it was the accused who stabbed her wife, the deceased and as a direct consequence she died, the prosecution has examined two witnesses, namely P.Ws.1 and 4. P.W.1 is the mother of the deceased and P.W.4 is the brother of the deceased. Both the witnesses have spoken in one voice that it was the accused, when they, along with the deceased, were returning to their house at Kappalur after their work and proceeding near the madathu pillaiar temple, who came over there with a knife hidden in his waist and stabbed the deceased. Their evidence is fortified by all other evidence available. It is pertinent to point out that when the deceased was taken to the hospital, she has stated before P.W.2, the Doctor, who examined him, that at about 11.00 p.m. she was stabbed by her husband and the said statement of the deceased has been recorded by P.W.2 in Ex.P-2, the Accident Register given by him and thus, it would be clear indicative of the fact that it was the earliest statement made by her which would have the force of dying declaration and then, following the same, in the instant case, P.Ws.1 and 4 have given categorical evidence in a graphic manner in which the occurrence has taken place.

9.Now coming to the contention of the learned counsel that immediately after the occurrence the accused went over to the police station and gave a complaint wherein he has narrated the entire incidence putting forth the truth but it was suppressed by the prosecution, it is pertinent to point out that the prosecution has brought to the notice of the Court that it is true that on arrest, the accused gave a complaint that he was attacked by P.W.4 and a case came to be registered in the next crime number and the same was prosecuted against P.W.4. Further, it is worthwhile to mention the evidence of P.W.4 that he has categorically stated that the accused came in a drunken mood and used filthy language against the deceased and it was questioned by the deceased, naturally and while so, the accused took the knife which was hidden in his waist and stabbed the deceased on her chest and at that time he intervened and in which he cut on the left hand of the accused with a small billhook which he was having and this would indicate that it is nothing but true and hence the evidence of P.Ws.1 and 4 inter-se corroborating with each other and this ocular testimony of P.W.1 and 4 stand fully corroborated by the medical evidence. In view of the above stated evidence, the contentions put-forth by the learned counsel for the appellant do not carry merit at all.

10.Coming to the second line of contention of the learned counsel for the appellant that the act of the accused would not attract the penal provision of murder, though the said contention is attractive in the first instance, it cannot stand scrutiny of factual position. From the reading and thorough scrutiny of the evidence on record would clearly indicate that the accused came in a drunken mood, used filthy language against the deceased and when it was questioned by her, he stabbed on her chest with the knife hidden in his waist. Further, the Court is unable to notice any quarrel to provoke the accused to stab the deceased indiscriminately and as a consequence she died. Under such circumstances, the act of the accused would attract the penal provision of murder, since it would show that he had the intention to cause the death of the deceased. Hence, the Court is of the considered opinion that factually or legally the judgment of the trial court does not require disturbance, except to be sustained.

11.Hence, the appeal fails and same is dismissed. The conviction and sentence imposed on the appellant/accused by the trial are hereby confirmed. To:

1.The Principal Sessions Judge,

Madurai District,

Madurai.

2.The Inspector of Police,

Thirumangalam Town Police Station,

Madurai.

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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