R.Shankar v. State rep by The Inspector of Police,K-1, Sembiyam Police Station(Crime No.180/2008)Chennai City

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 27.8.2009CoramThe Hon'ble Mr.Justice C.NAGAPPANandThe Hon'ble Mr.Justice M.JEYAPAULCriminal Appeal No.202 of 2009R.Shankar Appellant/Sole Accusedvs. State rep by The Inspector of Police,K-1, Sembiyam Police Station(Crime No.180/2008)Chennai City.Respondent/ComplainantFor appellant : Mr.R.John SathyanFor respondent : Mr.Hassan Mohamed Jinnah Additional Public ProsecutorPrayer:- Criminal Appeal to set aside the conviction and sentenceimposed in S.C.No.277 of 2008 dated 12.1.2009 on the file of thePrincipal Sessions Judge, Chennai.JUDGMENT(Judgment of the court was delivered by M.JEYAPAUL, J.)The single accused, who was convicted for offence under section302 of the Indian Penal Code and sentenced to undergo lifeimprisonment and to pay a fine of Rs.5000/= in default to undergothree months rigorous imprisonment, moves this present appeal. 2. On the side of the prosecution, P.Ws.1 to 14 were examinedand Exs.P1 to P14 and M.Os.1 to 6 were marked. There is neither oralnor documentary evidence on the side of the accused. https://hcservices.ecourts.gov.in/hcservices/

3. The brief case of the prosecution as unfolded by thewitnesses reads as follows:-(i) The deceased Shanthi is the mother of PW1 Geetha, PW2 Kabiland PW3 Mohana. The husband of Shanthi died about five years priorto the occurrence. Shanthi, thereafter, developed illicit intimacywith the accused Shankar who was an auto driver. PW1 Geetha wasmarried to one Kutty. She lived alongwith her husband in a separatehouse. PW2 Kabil and PW3 Mohana also resided alongwith PW1 Geetha.The accused was a drunkard. He used to pick up frequent quarrelwith Shanthi. (ii) On 14.2.2008 at about 8.00 pm Shanthi came down to thehouse of PW1 which was located at Palaniandavar Koil Street,Perambur. Shanthi informed PW1 to PW3, her children that the accusedharassed her having taken liquor and therefore, she had decided notto go and live with him again. PW1 appeased her saying that thecurrent life was her own making and therefore, she should put upwith such a wretched life. (iii) The accused came down to the house of PW1 searchingfor Shanthi. The accused asked PW1 to send Shanthi alongwith him.As the accused was fully drunk and had tortured her mother, PW1, atthe first instance, refused to send her mother to the house of theaccused. But, the accused promised that he would not harass Shanthithereafter. He appealed to PW1 to send Shanthi alongwith him.Believing such assurance of the accused, PW1 sent Shanthi to thehouse of the accused. (iv) PW1 and PW2, having suspected some foul play, got up inthe early morning on 15.2.2008 and went to the house of the accusedwhich is located two kilometres away from her house at about 5.00am. When P.Ws.1 and 2 opened the main gate, they heard the quarrelbetween the accused and the deceased. The quarrel continued forabout two minutes. The accused pushed down her mother and havingtaken a small crowbar M.O.1, attacked Shanthi twice on her head andcaused instantaneous death and sped away from the scene ofoccurrence alongwith the weapon of offence. (v) P.Ws.1 and 2 went inside the house of the accused and foundthe deceased dead in a pool of blood. (vi) PW1 rushed to the Sembiyam Police Station at about 6.00 amon 15.2.2008 and lodged a complaint, Ex.P1 to PW13 R.SilambuChelvan, Sub-Inspector of Police attached to the said policestation. PW13, having received the complaint, Ex.P1, registered acase in Crime No.180/2008 under section 302 of the Indian Penal Codeand prepared the printed FIR, Ex.P11. He despatched the same to thelearned Judicial Magistrate and copies thereof to the higherofficials.(vii) PW14 K.Sivamani, Inspector of Police attached to Sembiyam https://hcservices.ecourts.gov.in/hcservices/ Police Station, took up the case for investigation. He went to thescene of occurrence, prepared observation mahazar, Ex.P2 in thepresence of PW7 Mariadoss and another witness and drew rough sketchreflecting the scene of occurrence. He recovered blood stained tileM.O.2 and sample tile M.O.3 under relevant seizure mahazar, Ex.P13in the presence of the very same witnesses. He also arranged totake photograph of the scene of occurrence through a photographer. (viii) PW14 conducted inquest in the presence of the witnessesand panchayatdars and prepared inquest report, Ex.P14. (ix) PW14 examined the witnesses Geetha, Kabil, Mohana, Kutty,Chandra, Sumathy, Kumar and Sasidharan and recorded theirstatements.(x) On 16.2.2008 at about 9.00 am, the accused was arrested atMadhavaram High Road in the presence of PW10 Parthasarathy andanother witness by name Shanmugasundaram. On the basis of theadmissible portion, Ex.P6 found in the confession statementvoluntarily given by the accused, the crowbar M.O.1 was recoveredfrom a thorny bush near the EB office located at Madhavaram HighRoad. The accused was, thereafter, sent for judicial remand. Thematerial objects were also sent for chemical examination. (xi) PW9 Dr.Udayashankar, having received the request fromPW14, commenced post mortem on the dead body of Shanthi at 11.30 amon 16.2.2008. He found the following injuries on the dead body ofShanthi. "Cut injuries: Clear cut injuries with welldefined margins seen over (1) left ear 4x1 cmhorizontally. (2) Two cut injuries over the lefttemporal region 6x2 cm, 4x2 cm with 3 inchesapart seen one below the other (3) left parietalregion 6x2x1 cm, Scalp Sub-scalp clots seen overthe left parietal and right temporal regionsSkull Fracture Posterior cranial fossa at thejunction of the middle and posterior cranialfossa. Brain: Blood clots seen in all the lobes.Heart: Blood clots seen in all the chambers.Lungs: Both lungs oedematous and adherent to theinter costal muscles. Larynx, Trachea, Liver,Spleen, Kidneys: Normal Hyoid Bone: Intact.Stomach: Empty. Bladder, Uterus: Normal & empty.Pelvis: Normal & intact. Scalp, bones, membranes& brain – vide injury column. Spinal column:Normal & intact."He opined in the post mortem report, Ex.P4 that the deceased Shanthiappeared to have died of complications of head injuries. (xii) PW14, Inspector of Police received M.O.4 saree, M.O.5jacket, M.O.6 petticoat from PW8 Davis, post mortem Constable who https://hcservices.ecourts.gov.in/hcservices/ seized the same from the dead body after post mortem examination wasover. (xiii) PW12, Kamalatchi Krishnamoorthy, the Serologist hasspoken to the serology report, Ex.P10 issued by her. (xiv) PW14, having examined all the witnesses in this case,completed investigation and laid final report as against the accusedunder section 302 of the Indian Penal Code. (xv) The accused completely denied the incriminatingcircumstances spoken to by the witnesses examined on the side of theprosecution when he was questioned under section 313 of the Code ofCriminal Procedure. He came out with a lengthy written statementwhen he was examined under section 313 of the Code of CriminalProcedure. It is virtually a written argument submitted by theaccused. At any rate, it is found that he has categorically deniedeach and every incriminating circumstance spoken to by theprosecution witnesses. 4. PW9 Dr.Udayasankar, who conducted the post mortemexamination on the dead body of Shanthi, has found a cut injury onthe left ear and two cut injuries over the left temporal region andanother one on the left parietal region. Blood clots were seen inall the lobes of the brain and all the chambers of the heart. Hehas opined that Shanthi had died of complications due to headinjuries sustained by her. The evidence of PW9 Dr.Udayasankar inthe background of the post mortem report, Ex.P4 issued by him wouldestablish that the deceased died due to homicidal violence. 5. The prosecution relies upon the ocular testimony of PW1Geetha and PW2 Kabil in order to establish the case of theprosecution. PW1 Geetha and PW2 Kabil are none other than the sonand daughter of the deceased Shanthi. PW3 Mohana is also the youngerdaughter of the deceased Shanthi. P.Ws.1 to 3 have categoricallyspoken about the frequent quarrel that emanated between the accusedShankar and the deceased Shanthi. It is also on record that theaccused Shankar had developed illicit intimacy with the deceased forthe past about five long years after the demise of the husband ofShanthi. P.Ws.2 and 3 have resided alongwith their sister PW1 whowas married. P.Ws.1 to 3 have testified that on 14.2.2006 at about8.00 pm, the deceased Shanthi came to their house and informed thatthe accused Shankar, having fully drunk, tortured Shanthi andtherefore, she did not like to live with the accused Shankar anymore. PW1 and PW2 have spoken to the fact that it was only PW1 whoappeased the deceased Shanthi and sent her alongwith the accusedShankar when he had come to their house to take Shanthi alongwithhim. https://hcservices.ecourts.gov.in/hcservices/

6. P.Ws.1 and 2 had, in fact, taken the deceased Shanthi to thehouse of the accused Shankar and left her over there at about 10.00pm on 14.2.2008 and got back to their home. P.Ws.2 and 3 havedeposed that P.Ws.1 and 2 went to the house of the accused in themorning on 15.2.2008 to see what actually happened to her mother whowas sent to the house of the accused. P.Ws.1 to 3 have establishedthe quarrel picked up by the accused with the deceased the previousday and the compromise arrived at between them. 7. Coming to the ocular testimony of P.Ws.1 and 2, we find thatthey had gone to the house of the accused at about 5.00 am on15.2.2008. They found that the accused picked up quarrel with thedeceased when they just opened the main gate of the house of theaccused. They have also deposed that the accused, having firstpushed down their mother Shanthi, took the crowbar M.O.1 lying overthere and attacked her on the head twice and caused instantaneousdeath. They have also spoken to the fact that they have not chosento take Shanthi to the hospital as she had already expired.8. On the basis of the confession statement given by theaccused to the effect that the weapon of offence M.O.1 was hidden ina thorny bush near EB Office located at Madhavaram Main Road, M.O.1was recovered by PW14 in the presence of PW10 Parthasarathy. Fromthe evidence of PW12 Kamalatchi serology report Ex.P10, we findthat the weapon M.O.1 was found with human blood of 'B' group. Thesaid blood group tallied with the blood group found in the apparelsof the deceased recovered from her dead body. The sample bloodtaken from the deceased Shanthi would disclose that she had bloodgroup of 'B'. 9. The learned counsel appearing for the appellant wouldsubmit that P.Ws.1 and 2 are only chance witnesses. There was noreason for them to be present at the house of the accused at 5.00 amon 15.2.2008. It is his further submission that their evidenceappear to be quite artificial. 10. Learned Additional Public Prosecutor would submit thatthere was every reason for P.Ws.1 and 2, who are none other than thedaughter and son of the deceased Shanthi who lived with the accused,to be present at the house of the accused. Referring to theevidence of P.Ws.1 and 2, he would submit that they, in fact,suspected some foul play and therefore, they had gone to the houseof the accused to see their mother in the early morning. P.Ws.1 and2 are the children of the deceased Shanthi. The previous day, therewas a quarrel between the accused and the deceased. P.Ws.2 and 3 https://hcservices.ecourts.gov.in/hcservices/ have spoken to the fact that they wanted to see their mother in themorning as there was a quarrel during the previous night. P.Ws.1and 2 had already lost their father. Quite probably, P.Ws.1 and 2would not have ventured to take chance as there was a quarrelbetween the accused and the deceased on the same night. It is alsoon record that the house of the accused was not located far off fromthe house of PW1. They had taken a share auto and went to the houseof the accused at 5.00 am to see their mother. There is nothingartificial in the evidence of P.Ws.1 and 2 that they proceeded tothe house of the accused in the early morning. 11. It is submitted by the learned counsel appearing for theappellant that none of the neighbours or any independent witness wasexamined to corroborate the evidence of P.Ws.1 and 2 who are thechildren of Shanthi. We find that the occurrence had taken place at5.00 am. The sketch would reflect that the accused and the deceasedhad lived in an independent house. Sometimes there may be witnessesto see such an occurrence at the early morning. Sometimes, theremay not also be witnesses to see such an occurrence in the earlymorning. It all depends upon the location of the house and thehabits of the residents of the said location. We find that theevidence of P.Ws.1 and 2 is quite natural and believable.Therefore, no corroboration is required from any independent sourceto support the version of P.Ws.1 and 2. 12. The records would establish that at 6.00 am, the FIR, Ex.P1was registered by PW13. But, unfortunately, PW1 would state thatshe gave the complaint at 7.00 am on 15.2.2008. PW2 would statethat the complaint was given at about 8.00 am and PW3, on her part,would come out with a different version that the complaint was givenat about 10.00 am. It is to be noted that PW13, Silambu Chelvan,Sub Inspector of Police attached to Sembiyam Police Station has comeout with a categorical version that at about 6.00 am the complaintwas lodged by PW1. Considering the avocation of P.Ws.1 to 3 andtheir background, we find that they might have been confused withthe exact time at which PW1 went to the police station and lodgedthe complaint. Much weight cannot be attached to such a discrepancyas to the time of lodging the complaint with the police by PW1.PW14 has categorically stated that he rushed to the scene ofoccurrence immediately after he received the FIR.13. The learned counsel appearing for the appellant wouldsubmit that there is a whopping delay of eleven hours in despatchingthe FIR to the learned Judicial magistrate. On record, it is foundthat the first information report which was registered at 6.00 am on15.2.208 reached the learned Judicial Magistrate at 5.00 pm on thesame day. https://hcservices.ecourts.gov.in/hcservices/

14. The learned Additional Public Prosecutor in this contextwould submit that the statements of P.Ws.1 and 2 and the inquestreport, Ex.P14 reached the court of the learned Judicial Magistrateat 10.00 pm on 15.2.2008 itself. PW14, the investigating officerhas examined as many as eight witnesses during the course ofinquest. Therefore, the registration of the first information reportat 6.00 am on 15.8.2008 cannot be suspected. 15. As rightly pointed out by the learned Additional PublicProsecutor, we find that PW14, the investigating officer has done alaborious job of examining about eight witnesses during the courseof inquest. He has also examined P.Ws.1 and 2 and recorded theirstatements under section 161 of the Code of Criminal Procedure andthe inquest report as well as the statements of P.Ws.1 and 2 hadreached the court at 10.00 pm on 15.2.2008. If at all the firstinformation report was registered just before 5.00 pm on 15.2.2008,the aforesaid laborious task would not have been undertaken within aspan of few hours by the investigating official. Of course, thereis some delay in despatching the first information report. But, thesaid delay does not create a dent in the case of the prosecution inview of the above facts and circumstances. 16. The learned counsel appearing for the appellant wouldsubmit that there is virtually no disclosure statement given by theaccused which ultimately led to the recovery of the crowbar M.O.1.We find that the accused has categorically stated in the confessionthat he had thrown the weapon of office M.O.1 towards a bush nearthe EB office located at Madhavaram High Road. Such a specificversion disclosed by the accused had ultimately led to the recoveryof M.O.1. Though the concluding portion of the confession statementwas recorded in a third person form, we find that the relevantdisclosure in the mid of the confession statement leading torecovery was given by him in first person form. Further, therecovery of M.O.1 was spoken to by PW10 Parthasarathy who witnessedthe recovery of M.O.1 by PW14, the investigating official. 17. It is to be noted that PW1 Geetha and PW2 Kabil whowitnessed the occurrence have also identified the weapon M.O.1 asthat of the weapon of offence which was wielded by the accused atthe time of attacking their mother. To top it all, it is found fromEx.P10 serology report that blood group found in M.O.1 tallies withthe blood group of the deceased as well as the blood group found inthe apparels of the deceased. 18. The learned counsel appearing for the appellant wouldsubmit that Form 95 despatched by PW14 to the learned Judicial https://hcservices.ecourts.gov.in/hcservices/ Magistrate and the mahazar prepared by him for recovery of M.O.1 didnot disclose the blood stains found on M.O.1 PW10 and PW14 havecategorically deposed that the weapon was stained with blood. Theblood stained crowbar alone was sent to the learned JudicialMagistrate for examination. PW12 serologist has also spoken to thefact that blood stained weapon was analysed and it was found withhuman blood of 'B' group. In the above facts and circumstances, theomission made by PW14 in Form 95 and in the mahazar, Ex.P7 would notgo to the root of the case. 19. The learned counsel appearing for the appellant wouldsubmit that PW10 Parthasarathy has candidly admitted that the weaponof offence was recovered in a public place and not in a secludedlocation where there was no access to the public. 20. PW10 has deposed during the chief examination that theweapon was recovered from a thorny bush near EB office at MadhavaramHigh Road. During the course of cross-examination, he hadunderstood the question fielded to him relating to the location ofEB office at Madhavaram High Road. As it is found that the weaponwas recovered not on the road or in the open place near the EBoffice and it was recovered only from a thorny bush near EB Office,we find that the recovery of the M.O was only pursuant to thedisclosure statement given by the accused. 21. Lastly, it is submitted by the learned counsel appearingfor the appellant by way of alternative submission that theoccurrence should have taken place on account of sudden provocationprovided by the deceased to the accused. He also would submit thatthe act of the accused would fall either under the exception (1) or(4) of section 300 of the Indian Penal Code. 22. The learned Additional Public Prosecutor would submit thatthere is evidence to show that there was a quarrel between theaccused and the deceased on the previous night. P.Ws.1 and 2 had,in fact, suspected foul play. In fact, the weapon of offence, theseat of injury and the manner of attack would go to show that therewas some pre-meditation to commit the homicidal violence. 23. We find that there is much force in the submission made bythe learned Additional Public Prosecutor. P.Ws.1 to 3 have spoken tothe fact that there were frequent quarrel between the accused andthe deceased. Even during the previous night, there was a quarreland therefore, the deceased Shanthi came down to the house of PW1saying that she had no idea to go back to the house of the accusedto live with him anymore. PW1 and PW2 had suspected some foul play https://hcservices.ecourts.gov.in/hcservices/ and therefore, they had went to the house of the accused in theearly morning at 5.00 am to ensure the safety of the deceased. Theevidence of P.Ws.1 and 2, the ocular witnesses would disclose thatthe accused first pushed down the deceased and thereafter attackedher with the lethal weapon M.O.1 not once but twice on her head andcaused instantaneous death. There is also nothing on record tosuggest that there was any sudden provocation for the accused toreact in such a violent fashion. Further, we find that the accusedhad taken undue advantage of the unarmed victim at the time helaunched attack on her. 24. Of course, the learned counsel appearing for the appellant,referring to the confession statement of the accused, would submitthat the deceased, just before the occurrence, called the accused as"baadu" which would mean impotent and that therefore, the accusedhad reacted in such a violent fashion. The family background of theaccused and the deceased, the frequent quarrel emanated between themand the drinking habit developed by the accused would go to suggestthat such a scolding would not have provided a sudden provocation tothe accused to react in such a fashion. Therefore, we find that theaccused had attacked the deceased having picked up quarrel with thedeceased for two minutes with an intention to cause her death andcommitted murder. The seat of injury, the weapon of offence and themanner of attack would amply demonstrate the intention harboured bythe accused to cause death of the deceased. 25. We find that the prosecution has established beyondreasonable doubt that the accused attacked the deceased with anintention to cause her death and committed murder punishable undersection 302 of the Indian Penal Code. The Trial Court has rightlyreturned a verdict of conviction under section 302 of the IndianPenal Code and sentenced as stated supra. There is no warrant forinterference with the well considered judgment of the Trial Court. 26. Therefore, the appeal fails and it stands dismissed. ssk. Sd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Sessions Judge, City Civil Court, Chennai 600 104. 2. The Registrar, City Civil Court, Chennai 600 104.3. The Inspector of Police, K-1 Sembiyam Police Station, Chennai 600 011.4. The Superintendent of Prisons, Central Prison (Convict), Puzhal, Chennai 600 066. (In duplicate for communication to the detenu)5. The Director General of Police, Mylapore, Chennai 600 004. 6. The District Collector, 'Singaravelar Maligai', V Floor, Rajaji Salai, Chennai 600 001. 7. The Public Prosecutor, High Court, Madras. 8. The Section Officer, Criminal Side Section, High Court, Madras. •1 cc to Mr.R.John Sathyan, Advocate SR No.42414VSV(CO)SR/30.9.2009Crl.A.No.202 of 2009