Karthik @ Karthi v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 25.11.2009CoramTHE HONOURABLE MR. JUSTICE M. CHOCKALINGAM ANDTHE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAHCrl.A.No.385 of 2009Karthik @ Karthi ..Appellant/Sole Accused..Vs..State, rep. bythe Inspector of Police,Dharapuram Police Station,Erode District. ..Respondent/Complainant(Crime No.518/2006)Appeal filed to set aside the order dated 29.4.2009 passedin S.C. No.10 of 2009 on the file of the learned Additional Districtand Sessions Judge, Dharapuram (Fast Track Court No.III, Erode).For Appellant : Mr. N. Arun KumarFor Respondent : Mr. Babu Muthu Meeran Addl. Public ProsecutorJUDGMENT(Judgment was delivered by M. CHOCKALINGAM, J.)Challenge is made to the judgment dated 29.4.2009 passed bythe learned Additional District and Sessions Judge, Dharapuram (FastTrack Court No.III), Erode in S.C. No.10 of 2009, whereby the soleaccused stood charged, tried and found guilty for the offences underSections 341, 324, 302 and 506 (ii) (4 counts) of the Indian PenalCode and sentenced to undergo Simple Imprisonment for one month forthe offence under Section 341 of the Indian Penal Code; RigorousImprisonment for two years for the offence under Section 324 of theIndian Penal Code; Life Imprisonment with a fine of Rs.10,000/- indefault to undergo Rigorous Imprisonment for three years for theoffence under Section 302 of the Indian Penal Code and RigorousImprisonment for two years and to pay a fine of Rs.2,500/- in defaultto undergo Rigorous Imprisonment for six months for each count forthe offence under Section 506(ii) (4 counts) of the Indian Penal Code. https://hcservices.ecourts.gov.in/hcservices/

2. The short facts necessary for the disposal of the casecan be stated thus:(i) P.W.2 is running a photo studio at Palani. P.W.1belongs to Dharapuram village and close relative of P.W.2 and hasalso been employed in his studio. P.W.4 is the younger brother ofP.W.2. P.W.3 also belongs to the same village. The deceased is theyounger brother of P.W.2. On the date of occurrence i.e. on2.8.2008, P.Ws.1 to 4 and the deceased went to Dharapuram in a MarutiEsteem car, which belongs to P.W.2. The same was driven by P.W.2.They reached Dharapuram at about 5.30 p.m. and they went to a hoteland had dinner. (ii) Thereafter, when they proceeded to P.W.1's aunt'shouse, on the way to Anumanthapuram, at about 11.15 p.m., the accusedwas found standing in front of the temple along with his two wheelerT.V.S. 50. They raised the sound by giving horn, but the accuseddid not notice. Instead, the accused knocked the car door.Immediately P.W.2 stopped the car and questioned the conduct of theaccused and there was a wordy altercation caused between them andthereafter, they had left the place.(iii) P.Ws.2 to 4 along with the deceased went toAnumanthapuram and stopped the car. P.W.1 and the deceased proceededby walk towards west and some times later, when they were returningto the house of P.W.1's aunt, the accused came in a two wheeler,waylaid them and by taking an aruval from his back, attempted toattack the deceased. (iv) When P.W.1 intervened to prevent the same, the firstattack fell on the left shoulder of P.W.1. P.Ws.2 to 4, who werestanding nearby, on hearing distressing cry made by P.W.1, movedtowards the place of occurrence. The deceased was running westwardin order to escape from the accused, but he tumbled on his feet andfell down. The accused went near him and attacked him on his chest.When the deceased tried to escape, the accused chased him andattacked him on his left shoulder, which was witnessed by P.Ws.2 to5, who, by raising hue and cry, went near him. The accusedthreatened them by saying, "if they dared to near him, they wouldmeet dire consequence".(v) Thereafter, P.W.1 went to Dharapuram police station andgave Ex.P1 complaint to P.W.18, Sub Inspector of Police. On thestrength of the said complaint, a case was registered in CrimeNo.1518 of 2008 for the offences under Sections 341, 324, 302 and 506(ii) I.P.C. and P.W.1 was sent to the hospital along with memo.Express F.I.R. Ex.P18 was despatched to the Court. https://hcservices.ecourts.gov.in/hcservices/ (vi) On receipt of medical memo, P.W.8 Doctor attached toGovernment hospital gave treatment to P.W.1 and accident register wasmarked as Ex.P4. (vii) P.W.19 Inspector of Police, who took up theinvestigation, proceeded to the place of occurrence and preparedobservation mahazar Ex.P13 and also rough sketch Ex.P19. Heconducted inquest in the presence of witnesses and panchayatars andthe inquest report is marked as Ex.P20. He also recovered M.Os.2 to4 sample earth, blood stained earth and two wheeler under the coverof mahazar Ex.P12. The dead body was sent to the Hospital along withrequisition Ex.P21 for conducting post-mortem. (viii) P.W.7 Doctor, who conducted post-mortem on the deadbody, issued post-mortem Certificate Ex.P2, wherein he has opinedthat the death would have caused due to shock and haemorrhage andinjuries sustained by him.(ix) Pending investigation, the accused was arrested on4.8.2008. He came forward with the confession statement voluntarilyin the presence of witnesses and the admissible portion of the sameis marked as Ex.P16. Pursuant to the confession statement, theaccused produced M.O.1 aruvall and M.O.10 series currencies and thesame were recovered under the cover of mahazars Ex.P14 and P15 and hewas sent to judicial remand. All the materials recovered from thedead body and place of occurrence and M.O.1 aruval, the weapon ofcrime were all subjected to chemical analysis and the chemicalanalysis report and serological report are marked as Ex.P9 and P10respectively. On completion of investigation, the final report wasfiled. 3. The case was committed to the Court of Sessions.Necessary charges were framed against the accused. In order tosubstantiate its case, the prosecution examined P.Ws.1 to 19and relied on Exs.P1 to 21 and also relied on M.Os.1 to 17. Oncompletion of examination of witnesses on the side of theprosecution, when the accused was questioned under Section 313 of theCriminal Procedure Code, he denied them as false. No defence witnesswas examined on the side of the accused.4. The Trial Court, after hearing the arguments advanced byeither side and scrutinised the materials available on record, foundthe accused guilty under Sections 341, 324, 302 and 506 (ii) (4counts) of the Indian Penal Code and sentenced him as referred above.Hence, this appeal filed at the instance of the appellant/accused.5. Advancing arguments on behalf of the appellant, learnedcounsel would submit that in the instant case, though the prosecutionhad marched on eye witnesses, a discrepancy was found among thewitnesses, which would clearly indicate that their evidence is false. https://hcservices.ecourts.gov.in/hcservices/ According to the prosecution, the occurrence had taken place in thenight hours. The Trial Court has not found that since occurrencetook place at night hours, P.W.1 would not have seen the occurrence.Though P.W.1 was examined as injured witness, he has given evidencethat at that time, when he attempted to go to the rescue of thedeceased, he sustained the first injury. Had it been true, he shouldhave prevented the accused from committing the act, but he has notdone so. 6. Learned counsel would further submit that P.W.s2 to 5would not have seen the occurrence at all. The occurrence had takenplace at 11.15 p.m., that too at night hours. At that time, theywould have been inside the house and they would not have seen theoccurrence and the medical evidence canvassed would also not infavour of the prosecution.7. Learned counsel added further that the allegedconfession statement and the recovery of M.O.1 aruval from theaccused are all nothing but cooked up documents, but in vain. Evenassuming that the prosecution has put forth its evidence regardingthe weapon of crime, it is not suffice to support the prosecution.8. The second line of argument putforth by the learnedcounsel appearing for the accused is that if the Court takes its viewthat the prosecution has proved factually that it was the accused,who attacked the deceased at the time of occurrence and caused hisdeath, the act of the accused would not attract the penal provisionsof murder. The occurrence took place at 11.15 p.m. Even accordingto the prosecution, P.W.2 was driving the car and the accused wasstanding in the way and despite horn, he did not move and when thecar was stopped, the accused knocked the car at back side, it was thedeceased, who got down from the car and quarrelled with him. Ex.P1complaint, which is the earliest document, would clearly indicatethat within a short span of 15 minutes, the occurrence had takenplace. Hence, it has to be taken into consideration that due tosudden provocation, the accused has acted so and the act of theaccused was neither intentional nor deliberate, but it was onlycompelled by the situation and hence it would not attract the penalprovision of murder and this legal position has got to be consideredby this court. 9. This Court heard the learned Additional PublicProsecutor on the above contentions. 10. This Court paid its anxious considerations on the abovecontentions. It is not in controversy that one Karthikeyan, brotherof P.W.2, in an incident that had taken place at 11.15 p.m. on2.8.2008, met his death due to homicidal violence and following thecomplaint given by P.W.1, the case was registered and afterregistration of the case, the Investigating Officer conducted https://hcservices.ecourts.gov.in/hcservices/ inquest. It is also not in dispute that following the inquest madeby P.W.19, the body was sent to the Government Hospital for post-mortem and the Doctor, who has conducted the post-mortem, has givenhis categorical opinion that the deceased would appear to have dieddue to shock and haemorrhage and the injuries sustained by him.Apart from this, the cause of death as put forth by the prosecutionwas never questioned by the accused and hence, there is no impedimentfor this Court to accept the case as put forth by the prosecutionabout the cause of death at the time and place of occurrence.11. With reference to the charges levelled against theaccused/appellant, the prosecution examined P.Ws. 1 to 5 as eyewitnesses, out of whom, P.W.1 was the injured witness. It is wellsettled preposition of law that in a given case like this, when theeye witness happened to be an injured witness, the evidence of theinjured witness cannot be discarded unless and until strongcircumstance is noted or reason is brought forth. 12. In the instant case, P.W.1, who accompanied thedeceased at the time of occurrence, has also spoken about the earlierincident. According to P.W.1, he and P.Ws.2 to 4, came along withthe deceased in a maruthi car belonging to P.W.2 and driven by P.W.2.When they were coming to Dharapuram, the accused was found standingalong with his two wheeler in the middle of the road. Despite thesound of horn, he did not move. When the car was stopped, theaccused knocked the car at back and hence the deceased got down fromthe car and questioned the conduct of the accused and fifteen minuteslater, the occurrence took place.13. When P.W.1 and the deceased were returning from theirwalk and proceeding towards P.W.1's aunt's house, the accused camesuddenly in a two wheeler and attacked the deceased. In thatprocess, P.W.1 intervened, in which, he sustained injury. Insofar asthe injuries sustained by P.W.1 are concerned, he was examined bythe Doctor and accident register is marked as Ex.P4. Hence, from theevidence of P.W.1, it is clear that he sustained injury in the courseof same transaction and thus, the Court is unable to see any iota ofevidence to disbelieve the evidence of P.W.1. In sofar as thecommission of crime by the accused is concerned, the evidence ofP.W.1 is fully corroborated with the evidence of P.Ws.2 to 5 and thisevidence stood fully corroborated by medical evidence.14. Yet another circumstance against the accused was therecovery of M.O.1, aruval, the weapon of crime. Theaccused/appellant had given confession statement voluntarily at thetime of arrest and the same was also recorded in the presence ofwitnesses. The production of M.O.1 weapon of crime by the accused,following the confession statement given by him voluntarily, wouldindicate that the accused had nexus to the crime and that theprosecution had unshaken evidence. The prosecution produced Ex.P8 https://hcservices.ecourts.gov.in/hcservices/ chemical analysis report and Ex.P9 serological report, which wouldclearly indicate that the blood group of the body of the deceased aswell as the M.Os. recovered from the accused contain the same bloodgroup. 15. All would go to show that the prosecution had provedthe case that it was the accused, who has actually attacked thedeceased and caused his death and at knife point, threatened all thewitnesses. In view of the available evidence, the Court is unable toagree the contention of the learned counsel appearing for theappellant and the same is liable to be rejected and accordingly, itis rejected.16. The second line of argument is that the act of theaccused would not attract the penal provisions of murder since theact of the accused was due to sudden provocation and it was neitherintentional nor deliberate. The Court is unable to agree with thecontention raised by the learned counsel appearing for theappellant. The narration of entire evidence is that when P.W.2 isdriving his car on the way to Dharapuram, the accused was standing inthe middle of the road, and despite the horn, he did not move asideand when the car was stopped, he knocked the car back and when thedeceased questioned the conduct of the accused, there was a wordyaltercation and thereafter, after some time, when P.W.1 and thedeceased were walking towards the house of P.W.1's aunt, again theaccused came to the spot, armed with aruval and attacked thedeceased. When the deceased was attacked, it was P.W.1, whointervened to save him, in which course, P.W.1 sustained injury andwhen the deceased attempted to escape from the place, the accused bychasing him continuously, attacked him and by his act, he has causedthe death of the deceased.17. Now at this juncture, the contention of the learnedcounsel appearing for the appellant that there was a quarrel and inthe heap of quarrel, due to sudden provocation, the accused acted so,cannot be accepted for the simple reason that the earlier incidentwas over. Apart from that, if there was any provocation on the partof the accused, it was self made and the act of the accused was notdue to sudden provocation and if it is a sudden provocation, itshould have been caused by the deceased and not by the accused.Hence, the provocation was self made and not the defence. The actof the accused moving from the place and coming with an aruval andcaused the death of the deceased instantaneously cannot be stated tobe a sudden provocation.18. The Trial Court is perfectly correct in convicting theaccused for the offences under Sections 341, 324, 302 and 506 (ii)(4 counts) of the Indian Penal Code and sentenced him as referred toabove and sufficient evidence was noticed by the Court and all the https://hcservices.ecourts.gov.in/hcservices/ charges are proved by the prosecution. Hence the appeal fails andthe same is dismissed. Sd/Asst.Registrar/true copy/Sub Asst.Registrarssa.To1. The Judicial Magistrate, Dharapuram. 2. do- Through The Chief Judicial Magistrate, Dharapuram.3. The Additional District and Sessions Judge, (Fast Track Court No.III), Erode.4. -do- Through The Principal Sessions Judge, Erode.5. The Director General of Police, Madras – 4.6. The District Collector, Erode.7. The Superintendent, Central Prison, Coimbatore.8. The Inspector of Police, Dharapuram Police Station, Erode District.9. The Public Prosecutor, High Court, Madras.Copy to:The Section Officer,Criminal Section,High Court, Madras.+ 1 c.c. to Mr. C. Ram Kumar, Advocate. S.R.No.63700. Crl.A.No.385 of 2009KS (CO)GSK 14.12.2009.