Pandi Thevar @ Pandian @ Marudapandian v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.11.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL No.415 of 2009Pandi Thevar @ Pandian @ Marudapandian ..AppellantVs.State by:Inspector of Police,Dharapuram Police Station,(Cr.No.64 of 2007)Erode District. ..RespondentThis criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Principal District SessionsJudge, Erode, made in S.C.No.56 of 2007 dated 3.9.2007.For Appellant : Mr.E.J.AyyappanFor Respondent : Mr.Babu Muthu Meeran, APPJ U D G M E N T(The judgment of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the Principal SessionsDivision, Erode made in S.C.No.56 of 2007 whereby the sole accusedstood charged, tried and found guilty as per the charge of murder andawarded life imprisonment along with fine and default sentence. 2. The short facts necessary for the disposal of this appeal canbe stated thus:(a) P.W.1 is the resident of Pollachi Main Road, Ponnapuram. On23.1.2007 at 8.00 p.m., the deceased Arumugham was quarrelling withhis mother, at that time, the accused questioned him, "Are you aman, quarrelling with your mother?". There was wordy alternationbetween the accused and the deceased. Thereafter, the accused left https://hcservices.ecourts.gov.in/hcservices/ the place and after 15 minutes he came back again. The deceasedwarned him that it was his family affair and that he should notinterfere. Again, there was wordy altercation between the accusedand the deceased. The accused took a knife and attacked the deceasedon the chest and on different parts of the body. P.W.1 raiseddistress cry. The accused ran away from the place of occurrence.Immediately, the other witnesses gathered there. P.Ws.2, 3, 4, 5 & 7were all occurrence witnesses. (b) On 23.1.2007 at about 10.40 hours, when P.W.14 Sub Inspectorof Police was on duty, P.W.1 appeared before him and gave Ex.P1report. On the strength of which, a case came to be registered inCrime No.64/2007 under section 302 I.P.C. The express F.I.R. Ex.P15was dispatched to Court.(c) P.W.16 Inspector of Police of that circle took upinvestigation. He proceeded to the spot, made an inspection andprepared the Observation Mahazar Ex.P.2 and drew a rough sketchEx.P.18 in the presence of witnesses. He conducted inquest on thedead body of the deceased and prepared the Inquest report, Ex.P.19.Thereafter, the dead body was sent for post mortem.(d) P.W.15, doctor attached to the GovernmentHospital,Dharapuram, conducted autopsy on the dead body of thedeceased and issued post mortem certificate, Ex.P17 wherein he hasopined that the deceased would have died of injury to the vital organcausing shock and haemorrhage between 12 to 24 hours prior toautopsy. (e) Pending investigation, the accused was arrested. He cameforward to give confessional statement on 25.1.2007. The same wasrecorded and the admissible part of the same was marked as Ex.P4.Following the confessional statement, the accused produced M.Os.1, 5and 6 which were recovered under a cover of mahazar. The accused hadalso sustained injuries. Thus, he was taken to the Hospital. P.W.11,doctor medically examined him and gave treatment. Thereafter, theaccused was sent for judicial remand. All the material objectsrecovered from the place of occurrence, from the dead body of thedeceased and recovered from the accused, pursuant to the confessionalstatement, were all subjected to chemical analysis which resulted inEx.P.11 chemical report and Exs.P.12 and 13 serologist report. Oncompletion of the investigation, the investigating officer filed afinal report.(f) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution examined 16 witnesses and reliedon 19 exhibits and 13 material objects. On completion of the evidenceon the side of the prosecution, the accused was questioned undersection 313 Cr.P.C. as to the incriminating circumstances found in https://hcservices.ecourts.gov.in/hcservices/ the prosecution witnesses and he denied them as false. No defencewitnesses were examined. On hearing the arguments advanced on eitherside, the trial Court found the accused guilty of murder and awardedlife imprisonment along with fine and default sentence. Hence, thisappeal at the instance of the appellant.3. Advancing the arguments on behalf of the appellant, thelearned counsel would submit that in the instant, the prosecution,though examined 7 witnesses as eye witnesses, only P.Ws 1 to 3 havespoken in favour of the prosecution. P.W.1 is the wife of thedeceased and she is an interested witness. When the evidence of P.Ws.2 and 3 is scrutinised it would show that there are lot ofdiscrepancies on the material particulars. Hence, their evidence isinconsistent. Therefore, the trial Court should have rejected theirevidence. Insofar as the ocular testimony of these witnesses isconcerned, it did not corroborate with the medical evidencecanvassed. Further, in the instant case, the accused has sustainedinjuries and the injuries were actually found and spoken by adoctor. P.W.11, doctor have noted the injuries on the head of theaccused and those injuries could not have been caused without aweapon . The injuries sustained by the accused was not explained.Hence, the prosecution has miserably failed to prove the genesis ofthe occurrence and the non-explanation of the injuries on the accusedwould be suffice to reject the prosecution case. For that propositionthe learned counsel relied on the decision of the Apex Court reportedin AIR 1976 Supreme Court 2263 (Lakshmi Singh v. State of Bihar). Thelearned counsel would add that the trial Court has taken an erroneousview and found the accused guilty. Hence, the accused has got to beacquitted in the hands of this Court.4. The learned counsel for the appellant, as the second line ofargument would submit that even as per the eye witnesses, it was thedeceased who quarrelled with his mother and on seeing the same theaccused came there to advised him and in that process, there waswordy altercation between the accused and the deceased. Apart fromthat, the accused sustained injuries. All would go to show that thedeceased was the aggressor who first attacked the accused on his headwith a weapon and thereafter, the accused has attacked the deceased.Therefore, the act of the accused would not attract the penalprovision of murder and this factual position has to be considered bythis Court.5. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.6. It is not in controversy that one Arumugam husband of P.W.1died on the spot in an incident that had taken place on 23.1.2007 at8.00 p.m. Following the inquest made, the investigating officer sentthe dead body for post mortem. P.W.1 who is the wife of the deceased https://hcservices.ecourts.gov.in/hcservices/ has categorically deposed that it was the accused who had attackedthe deceased and the doctor who conducted post mortem has givenopinion that the deceased died out of shock and haemorrhage due tothe injuries sustained by him. The time, cause and place of death asputforth by the prosecution was never disputed by the appellantbefore the trial and before this Court. Hence, it could be recordedso.7. In order to substantiate that it was the accused who stabbedthe deceased, the prosecution though examined P.Ws. 1 to 6, the factwas clearly spoken to by P.Ws. 1 to 3. P.W.1 is the wife of thedeceased and her evidence corroborates with the evidence of P.Ws. 2and 3. At the time of occurrence, there was wordy altercationbetween the deceased and his mother. At that time, the accusedintervened and there was wordy altercation between the accused andthe deceased and thereafter, the accused left the place. Again, after15 minutes, the accused came back and again there was wordyalternation between the accused and the deceased. At that time, itwas the accused who took a knife from his waist and stabbed thedeceased on different parts of the body and caused his death. Theocular testimony projected through P.Ws. 1, 2 and 3 truthfullycorroborates with the medial evidence canvassed through the postmortem certificate, Ex.P17. Added circumstances is the recovery ofthe weapon of crime from the accused pursuant to the confessionalstatement recorded from him in the presence of witnesses. All wouldgo to show that the prosecution has clearly proved that it was theaccused who stabbed the deceased and caused his deathinstantaneously. Hence, the contention putforth by the learnedcounsel for the appellant and recorded above do not merit acceptancewhatsoever. Hence, it is liable to be rejected, accordingly rejected.8. Insofar as the second line of argument is concerned, theCourt is able to see force in the contention of the learned counselfor the appellant. The case of the prosecution is that at 8.00 p.m.on 23.1.2007, the deceased was quarrelling with his mother, at thattime, the accused intervened and there was wordy altercation betweenthe accused and the deceased. The accused left the place but thequarrel between the deceased and his mother continued and again, theaccused intervened to advise the deceased, at that time there waswordy altercation between the accused and the deceased and theaccused took a knife and stabbed him on different parts of the bodyof the deceased. Thus, it is quite clear that there was quarrelbetween the accused and the deceased and hence, the accused had actedso. Hence, the act of the accused was neither intentional norpremeditated, but due to sudden provocation, he has acted so. In thatprocess the accused also sustained injury. Therefore, the act of theaccused would be one culpable homicide not amounting to murder.Hence, the Court is of the considered opinion that the act of theaccused would attract the penal provision of Section 304(ii) IPC and https://hcservices.ecourts.gov.in/hcservices/ awarding punishment of 5 years rigorous imprisonment would meet theends of justice. 9. Hence, the judgment of conviction and sentence imposed by thelower court on the appellant under Section 302 IPC is modified andinstead, the appellant is found guilty under Section 304(ii) IPC andsentenced to undergo 5 years rigorous imprisonment. The period ofsentence already undergone by the appellant is ordered to be givenset off. The fine amount imposed under section 302 IPC shall betreated as the fine amount imposed under section 304(ii) IPC. 10. With the above modification in conviction and sentence, thecriminal appeal is dismissed.vsi Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1. The Principal District Sessions Judge, Erode.2. The Inspector of Police, Dharapuram Police Station, Erode District.3. The District Collecor Erode,4. The Superintendent Coimbatore Central Prison,5. The Director General of Police Chennai-46. The Public Prosecutor, High Court, Chennai.+ 1 cc to Mr. E.J.Ayyappan, Advocate SR.60053CRL. APPEAL No.415 of 2009RS(CO)EU 19.11.2009.