D.Prakasam v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 03.04.2008Coram:-The Hon'ble Mr. Justice P.D.DINAKARANandThe Hon'ble Mr. Justice R.REGUPATHICriminal Appeal No.1039 of 2007D.Prakasam... Appellantvs.State, rep. by theInspector of Police,Vellore Taluk Police Station,Vellore District.(Cr.No.403 of 2007)... RespondentAppeal against the Judgment dated 9.10.2007 passed by the learnedPrincipal Sessions Judge, Vellore, in S.C.No.93 of 2007.For Appellant: Mr.SivanandamFor respondent: Mr.N.R.Elango, Addl. Public Prosecutor.* * * * *J U D G M E N T(Delivered by P.D.DINAKARAN, J.)The appellant, sole accused in Sessions Case No.93 of 2007,questioning the conviction and sentence passed by the learnedPrincipal Sessions Judge, Vellore, by judgment dated 9.10.2007, haspreferred this appeal.2.The charge against the appellant is that on 16.10.2005 atabout 8.30 p.m., with an intention to cause the death of oneMathiazhagan @ Mathi, went to Mathiazhagan's house with his sonSathishkumar and hit Mathiazhgan's head with a fire wood and therebycaused his death and thus, committed an offence punishable underSection 302 I.P.C.3.The case of the prosecution, as unfolded by the oral anddocumentary evidence, is stated thus: https://hcservices.ecourts.gov.in/hcservices/ (a) P.W.1, P.W.2, the deceased Mathiazhagan @ Mathi and theaccused Prakasam, all are retired ex-service men. They all resideat Kattupudur village, Vellore Taluk. The deceased Mathiazhagan @Mathi is the cousin brother of P.W.1. The deceased Mathiazhagan washaving a brother by name Murali, who is no more. P.W.6 is thesister-in-law of the deceased and she also resides in the samevillage with her husband. According to P.Ws.1 and 2, who are eyewitnesses and P.W.6, the accused was having illicit relationship withone Latha, wife of Murali, the brother of the deceased, which wasobjected by the deceased. Despite the warning given by the deceased,the accused continued with the relationship, due to which, apanchayat was convened, in which the accused was directed to payfine. Thus, the accused had a grudge against the deceased.(b) While so, on 16.10.2005 at about 8.30 p.m., P.W.1 went tothe house of the deceased and was talking with him. At that time, theaccused, along with his son, Sathishkumar, came there uttering filthywords and saying "die, at last", he beat him on his head with a firewood repeatedly. Sathishkumar, son of accused, fisted him on hischest. On seeing the attack, he raised an alarm and P.W.2, who wasnearby, rushed there, shouting not to beat the deceased. Crowdgathered and the accused ran away from the place leaving the firewoodat the scene. P.W.6 also came to the scene on hearing the shouts andfound the deceased lying down with head injuries. The witnesseslifted the deceased and poured water in his mouth, but as he did notdrink the water, it flowed out. Thereafter, the deceased was takento Adukkamparai Government hospital at Vellore in an ambulance by thewitnesses. P.W.2 has also spoken on similar lines about the motiveand the occurrence proper.(c)P.W.3, the medical officer who was on duty, examined thedeceased and pronounced him dead. On enquiry, he was informed thattwo known persons assaulted the deceased with a wooden log at about8.30 p.m. on 16.10.2005. P.W.3 issued Ex.P.2, accident register copyand sent an intimation, Ex.P.3 to the police.(d) P.W.1, thereafter, went to the police station and lodged thecomplaint, Ex.P.1. P.W.11, Sub-Inspector of Police, Vellore SouthPolice Station, on receipt of Ex.P.1, registered a case in CrimeNo.403 of 2005 for offences under Sections 294(b), 323, 302 IPC. Heprepared printed First Information Report, Ex.P.17 and sent the sameto Court as well as copies to higher officials.(e) P.W.12, after obtaining a copy of the first informationreport at about 1.10 a.m. on 17.10.2005, proceeded to the scene ofoccurrence, observed the same and prepared observation mahazar,Ex.P.10 and drew a rough sketch, Ex.P.18. He examined P.W.7 andothers present at the spot and recorded their statements. In thepresence of witnesses, he seized M.Os.4 and 5, blood-stained earth https://hcservices.ecourts.gov.in/hcservices/ and sample earth and M.O.1, blood-stained firewood from the scene ofoccurrence. He, thereafter, examined P.Ws.2, 3, 6 and others andrecorded their statements. He went to the mortuary at the hospitaland conducted inquest over the dead body of the deceased Mathiazhaganbetween 6.00 a.m. and 9.00 a.m. in the presence of panchayatdars andwitnesses. Ex.P.19 is the inquest report. The body was thereaftersent through a police constable with a requisition, Ex.P.4, to themedical officer to conduct autopsy.(f) On receipt of the requisition, P.W.4, Civil AssistantSurgeon attached to Government Vellore Medical College Hospital,conducted autopsy on the dead body and found the following externalinjuries:-(1) Laceration of scalp in the midline of head measuring 10x 1 x 1 cm.(2) Abrasion forehead on right side measuring 3 x 0.5 cm.(3) Abrasion front of chest on left side measuring 5 x 0.5cm.The doctor issued Ex.P.7, post-mortem certificate, reserving hisopinion about the cause of death.(g) P.W.12 continued his investigation and recovered M.Os.2 and3, lungi and shirt of the deceased, after the same was produced bythe police constable, who was present at the time of post-mortem andsent the same to Court under Form 95. At about 6.00 p.m. on17.10.2005, on information received, he arrested the accused nearNanjukondapuram - Amirthi Road in the presence of P.W.8 and anotherand recorded his confession statement. He, thereafter, sent thematerial objects to Court with a requisition, Ex.P.13, to send themfor chemical examination. He also issued a requisition, Ex.P.14, tosend the hyoid bone of the deceased for chemical examination. Heexamined P.Ws.7, 8 and others and recorded their statements. He alsoexamined P.W.3, the doctor who examined the deceased and pronouncedhim dead and obtained Ex.P.2, accident register copy. On 29.10.2005,he examined P.W.4, post-mortem doctor and received Ex.P.7, post-mortem certificate. On 26.11.2005 he examined P.W.9 and another andrecorded their statements.(h) In the meantime, P.W.4, the medical officer, receivedEx.P.5, Hyoid Bone report dated 9.11.2005, wherein it is stated thatno injury was found in the hyoid bone and Ex.P.6, Toxicology reportdated 16.11.2005, wherein it is stated as hereunder:-"(1) Stomach with contents – detected 817 mg. Of ethylalcohol but not other poison.(2) Intestine with contents – detected 104 mg of ethylalcohol but not other poison.(3) Liver and Kidney – detected 242 mg. Of ethyl alcoholbut not other poison. https://hcservices.ecourts.gov.in/hcservices/ (4) Blood – detected 70 mg (%w/v) of ethyl alcohol but notother poison.(5) Preservatives – Did not detect ethyl alcohol."Based on the above reports, P.W.4 has issued his opinion as to thecause of death that the deceased died of head injury (subduralhaematoma) about 12 to 16 hours prior to post-mortem.(i) P.W.12, thereafter, obtained Exs.P.8, biologist report andEx.P.9, serologist report and on completing investigation, laid thecharge sheet against the appellant and the other accused undersections 302, 34 I.P.C. On 6.12.2005.(j) The learned Magistrate committed the case to Court ofSessions and since the other accused was a minor at that time, theoffence committed by him has been dealt with separately as per theJuvennile Justice Act. The case against the appellant/accused wastaken up on file in S.C.No.93 of 2007 and since he denied hiscomplicity, the trial commenced. At the time of trial, theprosecution examined P.Ws.1 to 12, marked Exs.P.1 to P.19 andproduced M.Os.1 to 5. After the completion of evidence on the sideof prosecution, the accused was questioned under Section 313 Cr.P.C.on the incriminating materials appearing against him in the evidenceof prosecution witnesses. He denied them as false, but did notexamine any witness on his side. However, he marked Exs.D.1 to D.8,the photographs and negatives, during the cross-examination of P.W.2and Ex.D.9, rough sketch, during the cross-examination of P.W.7.(k) The trial Court, on the basis of the evidence adduced and onhearing the submissions of the learned counsel for both sides, foundthe appellant/accused guilty of the offence of murder and convictedand sentenced him as referred to above. Hence, the present appealhas been brought forth before this Court.4. Mr.Sivanandam, learned counsel for the appellant, submitsthat, (i) P.Ws.1, 2 – eye witnesses and P.W.6 – hear-saywitness, are close relatives of the deceased and hence, theyare interested witnesses;(ii) the motive as claimed by the prosecution has notbeen proved by examining Latha, with whom the accused wasalleged to have had illicit intimacy or much less one of thepanchayatdars who imposed fine on the accused for the same;(iii) alternatively, he submits that even if the caseof the prosecution is taken to be true, the appellant cameto the scene of occurrence unarmed and in view of thesustained provocation, he attacked the deceased with a https://hcservices.ecourts.gov.in/hcservices/ firewood which was lying there. Moreover, the deceased wasalso in inebriated condition and naturally his resistencelevel would have been low and he would not have sustainedeven a minor blow. Hence, the act committed by the accusedcould only attract lesser offence.5.1. On the other hand, Mr.N.R.Elango, learned Additional PublicProsecutor, sustaining the judgment of the trial Court, submits thatthe evidence of the eye witnesses are cogent, natural andtrustworthy and in view of the settled proposition, their evidencecannot be brushed aside merely on the ground of interested witnessesand the prosecution has also established the motive part of theoccurrence. Therefore, the learned Additional Public Prosecutorsubmits that the impugned judgment is well-founded and nointerference is called for. 5.2. To the alternative submission, the learned AdditionalPublic Prosecutor submits that in view of the motive being stronglyestablished, though the accused was unarmed, he came there only witha view to attack the deceased, which is evident from his conduct andhence, the offence of murder is positively made out. 6.1. The prosecution has examined P.Ws.1, 2 and 6 to establishthat it was the appellant/accused who inflicted injuries on thedeceased along with his son, which resulted in his death. P.Ws.1 and2 are the direct eye witnesses to the occurrence and P.W.6 is thewitness who came to the scene of occurrence on hearing the shouts.According to P.W.1, when he was talking with the deceased in front ofthe house of the deceased, the accused and his son came thereshouting filthy words against the deceased and immediately, theaccused took a fire wood and beat the deceased on his head. Thejuvenile accused, viz., son of the appellant Sathishkumar, beat himon his chest and thereafter, the deceased fell down. 6.2. According to P.W.2, when he came out of his house, he sawthe deceased talking with P.W.1 in front of his house and at thattime, the accused came there uttering filthy words against thedeceased and also shouted that it was because of him, he lost hisreputation in the village and hence, he has to be finished off, thenonly he can live in peace. It is his further evidence thatimmediately, the accused took the firewood which was lying there andrepeatedly beat the deceased on his head and that on receipt of thefirst hit, the deceased raised alarm and again the accused beat himand when the deceased was about to fall down, the juvenile accusedfisted him on his chest. P.W.2 has further stated that he camerunning towards the scene saying not to beat the deceased and thatthe accused after beating the deceased, dropped the wooden log at thescene and went away by uttering "get lost". https://hcservices.ecourts.gov.in/hcservices/

6.3. P.W.6 in her evidence has stated that she came to the sceneon hearing the shouts and saw the accused lying down with bleedinginjuries on his head. It is the further evidence of P.Ws.1, 2 and 6that they lifted the deceased and found him dead. Thereafter, thecomplaint was lodged at the police station. On going through theevidence of P.Ws.1, 2 and 6, we find that it is cogent, natural andtrustworthy. 7.1. Merely because the witnesses are related to the deceased,their evidence cannot be rejected, since the law on the point is wellsettled that relationship is not a factor to affect credibility of awitness and it is more often than not that a relation would notconceal actual culprit and make allegations against an innocentperson.7.2. At this juncture, it is apposite to refer to the decisionsof the Apex Court. In Dalip Singh v. State of Punjab, (AIR 1953 SC364), the Apex Court has observed as hereunder:-"26. A witness is normally to be considered independentunless he or she springs from sources which are likely tobe tainted and that usually means unless the witness hascause, such as enmity against the accused, to which toimplicate him falsely. Ordinarily a close relation would bethe last to screen the real culprit and falsely implicatean innocent person. It is true, when feelings run high andthere is personal cause for enmity, that there is atendency to drag in an innocent person against whom awitness has a grudge along with the guilty, but foundationmust be laid for such a criticism and the mere fact ofrelationship far from being a foundation is often a sureguarantee of truth. However, we are not attempting anysweeping generalisation. Each case must be judged on itsown facts. Our observations are only made to combat whatis so often put forward in cases before us a general ruleof prudence. There is no such general rule. Each case mustbe limited to and be governed by its own facts."7.3. Again in Masalti v. State of U.P., AIR 1965 SC 202, theApex Court observed that:"But it would, we think, be unreaonsable to contend thatevidence given by witnesses should be discarded only on theground that it is evidence of partisan or interestedwitnesses. .... The mechanical rejection of such evidenceon the sole ground that it is partisan would invariably leadto failure of justice. No hard and fast rule can be laiddown as to how much evidence should be appreciated.Judicial approach has to be cautious in dealing with suchevidence; but the plea that such evidence should be rejectedbecause it is partisan cannot be accepted as correct." https://hcservices.ecourts.gov.in/hcservices/

7.4. Further, in Pulicheria Nagaraju v. State of A.P. (2006)11 SCC 444, it has been observed:".. that evidence of a witness cannot be discarded merely onthe ground that he is either partisan or interested orclosely related to the deceased, if it is otherwise found tobe trustworthy and credible. It only requires scrutiny withmore care and caution, so that neither the guilty escape northe innocent wrongly convicted. If on such carefulscrutiny, the evidence is found to be reliable and probable,it can be acted upon. If it is found to be improbable orsuspicious, it ought to be rejected. Where the witness hasa motive to falsely implicate the accused, his testimonyshould have corroboration in regard to material particularsbefore it is accepted."7.5. In the instant case, though P.Ws.1, 2 and 6 are closelyrelated to the deceased, their evidence as regards the occurrence isconsistent and nothing concrete was elicited in favour of the accusedin spite of lengthy cross-examination running to several pages. Ongoing through their evidence, we do not find any infirmity orinconsistency and hence, we accept their evidence and hold that thelearned trial Judge was justified in basing his conclusion relying ontheir evidence.8. The contention that the prosecution has not established themotive part of the occurrence by examining Latha, with whom theaccused was alleged to have had illicit relationship or by examiningthe panchayatdars who have imposed fine on the accused for havingsuch relationship, does not hold good, in view of the direct evidenceregarding the occurrence proper. In a case where direct evidence ofeye witnesses is available, motive lacks significance and it can beused only by way of corroboration. Hence, the non-examination ofLatha or any of the panchayatdars does not affect the substratum ofthe prosecution case that it was the accused and none else whoattacked the deceased on that fateful day.9.1. The question that is to be decided is whether the actcommitted by the accused attracts the offence of murder or any lesseroffence. Even as per the evidence of eye witnesses, the accused cameto the scene unarmed and after abusing the deceased in filthylanguage, he took the firewood which was lying there and inflicted ablow on his head. According to the post-mortem doctor, P.W.4, hefound three injuries on the body of the deceased and that injury No.1could have been caused with a wooden log like M.O.1, injury No.2could have been sustained when the deceased moved aside while he wasattacked and injury No.3 could have been sustained due to fall. Fromthe above evidence of P.W.4, it can be easily presumed that the firstinjury could have been caused by appellant/accused and the secondinjury could be attributed to the juvenile accused. The thirdinjury, obviously after the deceased fell down. https://hcservices.ecourts.gov.in/hcservices/

9.2. Even though it is assumed that the appellant had inflictedonly one blow, the words he uttered before and after he mounted theattack on the deceased clearly shows that he had the intention tocause bodily injury which is likely to cause death. It is to benoted here that, just prior to the occurrence, the deceased hadconsumed alcohol, as is evident from the evidence of the post-mortemdoctor and the toxicology report, Ex.P.6, already extracted above.Hence, the possibility of the deceased breathing his last immediatelyafter the attack on his head by the accused due to intoxicationcannot be ruled out. In such a view of the case, we are of theconsidered opinion that the offence committed by the accused, atbest, could only fall under Section 304 Part-I I.P.C. and for which,he is sentenced to undergo rigorous imprisonment for a period ofseven years.In result, the conviction of the appellant/accused under Section302 I.P.C. is set aside and instead, he is convicted under Section304 Part-I I.P.C. and for the said conviction, he is sentenced toundergo rigorous imprisonment for a period of seven years. With thismodification, the appeal is dismissed.Sd/- Assistant Registrar/True Copy/Sub Assistant RegistrarsraTo1.The Principal Sessions Judge, Vellore.2.The District Collector, Vellore.3.The Director General of Police, Chennai.4.The Inspector of Police, Vellore Taluk Police Station, Vellore District. https://hcservices.ecourts.gov.in/hcservices/

5.The Superintendent,Central Prison, Vellore.6.The Public Prosecutor, High Court, Madras.C.A. No.1039 of 2007.MDR(CO)SRA (24/04/2008)