Mohanasundaram v. State by the Inspector of Police Gudimangalam Police Station Udumalpet Taluk, Coimbatore District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 30.10.2009CORAMTHE HONOURABLE MR. JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAHCRL.A.No.505/2009Mohanasundaram ..Appellant/A1VsState by the Inspector of Police Gudimangalam Police StationUdumalpet Taluk,Coimbatore District. ..Respondent/[Cr.No.44/2008]ComplainantAppeal filed u/s.374[2] Cr.P.C., to set aside the Judgment ofconviction and sentence passed in SC.No.258/2008 on the file of thelearned Additional District and Sessions Judge, Fast Track CourtNo.II, Coimbatore dated 10.07.2009.For Appellant:Mr.K.KalyanasundaramFor Respondent:Mr.Babu Muthu Meeran, Addl. Public ProsecutorJUDGMENT[Judgment of the court was delivered by M.CHOCKALINGAM, J.]Challenge is made to the Judgment of the learned AdditionalDistrict and Sessions Judge, FTC-2, Coimbatore, made inSC.No.258/2008 whereby the accused/A1 and A2 stood charged, tried andthe appellant/A1 was found guilty for the offence u/s.341 and 302 IPCand was awarded with life imprisonment and to pay a fine ofRs.5,000/- in default to undergo three years simple imprisonment forthe offence u/s.302 IPC and was awarded one month simple imprisonmentand to pay a fine of Rs.100/- in default to undergo one week simpleimprisonment for the offence u/s.341 IPC. The trial Judge ordered thesentences to run concurrently and acquitted the second accused of allthe charges leveled against her. The above appeal has been preferredby the first accused.2.Short facts necessary for the disposal of the appeal can bestated as follows:-[a]P.Ws.1 to 8 are the residents of the village called Kongal.The deceased Lakshmanasamy and A1/appellant were the sons of P.W.4 https://hcservices.ecourts.gov.in/hcservices/ and the other witnesses are closely related to each other inter-seand also related to both the accused and the deceased. A1/appellantis the husband of A2. The family of P.W.4 had 15 acres of land and itwas put to family partition in which P.W.4 was having 2 acres ofland. But, A1 was retaining the possession of land and thus, therewas a civil dispute between the parties and even two months prior tothe occurrence, A1's wife was attacked by the deceased and she wastaking treatment for some time.[b]On the date of occurrence, i.e., 17.03.2008 at about 9.30p.m. the deceased went to the house of P.W.1 and at that time, theaccused waylaid him and while A2 caught hold of the deceased, A1attacked him with a bamboo stick and this occurrence was witnessed byP.Ws.1 to 8. When the distressing cry was raised, both the accusedfled away from the scene of occurrence. The deceased who sustainedinjuries fell down and dead on the spot. [c]P.W.1 immediately went to the respondent police at about00.30 hours on 18.03.2008 and gave a complaint under Ex.P.1 toP.W.21, the Sub-Inspector of Police attached to the Gudimangalampolice station, on the strength of which a case came to be registeredin Crime No.44/2008 for the offence u/s.341 and 302 IPC and theExpress FIR, Ex.P.11 was despatched to the court and to P.W.24, theInspector of Police. P.W.24, the Inspector of Police attached to theUdumulpet police station and who was in-charge of the respondentpolice, received the FIR at about 2.00 a.m. on 18.03.2008 took up theinvestigation, proceeded to the scene of occurrence at about 6.00a.m. ; prepared Observation Mahazar-Ex.P.2 and a rough sketch-Ex.P.18; held inquest on the dead body of the deceased from 7.45 a.m.to 10.00 a.m. in the presence of witnesses and panchayatdars underEx.P.19 and also recovered the material objects from the scene ofoccurrence, viz.,M.O.1-Blood stained earth, M.O.2-sample earth,M.O.3-small stone blood stained, M.O.4-dried leaves with a corn[blood stained], M.O.5-beedies and M.O.6-sigar light under the coverof Mahazar-Ex.P.3. He also examined the witnesses and recorded theirstatements. He also made arrangements for taking photographs at thescene of occurrence and Ex.P.11 series is the Photographs andnegatives. Thereafter, the dead body was sent to the GovernmentHospital, Udumulpet, for Postmortem along with a requisition,Ex.P.12. [d]P.W.22 the doctor attached to the Government Hospital,Udumulpet, conducted autopsy on 18.03.2008 at about 12.00 noon andissued Postmortem Certificate under Ex.P.13 wherein he found thefollowing injuries:-"EXTERNAL INJURIES 1.A lacerated injury over the right side of theoccipital region measuring about 6x0.5cmxbone depth. 2.A lacerated injury behind the right ear measuring https://hcservices.ecourts.gov.in/hcservices/ 3x2x.5cm. 3.A lacerated injury over the center of theoccipital bone 4x0.5xbone depth. 4.Contusion below the right ear 10x6cm. 5.Contusion over the center of the chest 11x2 cm. 6.An abrasion over the left middle finger 3cm x0.1cm 7.An abrasion over the left ring finger 0.5cmx0.1 cm 8.An contusion over the left parietal region 7cm x5 cm." The doctor had given his opinion that the deceased would appear tohave died of injury to the brain, haemorrhage and shock 12 to 18hours prior to autopsy.[e]Pending investigation, P.W.24, on 18.03.2008 at about 16.30hours, arrested A2/Rajamani in the presence of witnesses and she cameforward to give a voluntary confessional statement, the admissiblepart of which is marked as Ex.P.4 pursuant to which M.O.5-bloodstained saree was recovered under cover a Mahazar-Ex.P.5. He alsoarrested A1 on 19.03.2008 at about 6.00 a.m. and he voluntarily cameforward to give a confessional statement, the admissible part ofwhich is marked as Ex.P.6 pursuant to which M.O.8-bamboo stick,M.O.9-lungi and M.O.10-shirt were recovered under the cover ofMahazars Exs.P.7 and 8 respectively. All the material objectsrecovered from the scene of occurrence, accused and from the deadbody were all subjected to chemical analysis which resulted in 3reports, viz., Exs.P.15 to 17-Chemical Analyst Report and SerologistReports respectively.[f]On completion of investigation and filing of the finalreport, the case was committed to sessions; necessary charges framedand in order to substantiate the charges, the prosecution examined 24witnesses [P.Ws.1 to 24], marked 19 exhibits [Exs.P.1 to 19] andproduced 15 material objects [M.Os.1 to 15]. 3.When the accused were questioned u/s.313 Cr.P.C., as to theincriminating circumstances against them, they denied them as falseand no defence witness was examined on the side of the accused.Hearing the arguments advanced on either side and also consideringthe incriminating materials against the accused, the trial court tooka view that the prosecution has proved its case beyond reasonabledoubt against the first accused and thus, rendered the judgment ofconviction as stated above. As against the said conviction andsentence, the first accused has preferred the above appeal.4.Advancing the arguments on behalf of the appellant, the https://hcservices.ecourts.gov.in/hcservices/ learned counsel would submit that in the instant case, theprosecution has miserably failed to prove its case and though theprosecution examined 8 witnesses as eyewitnesses, all of them areactually interested in the deceased. P.W.4, the mother of thedeceased and others are inter-se related to each other and alsorelated to the deceased and the first accused/appellant. It is alsoan admitted position that P.W.4 and the deceased were on the one sideand the appellant and his wife on the other side and they got a civildispute between them and thus, their relationship was strained. Inthe instant case, P.W.4 and other witnesses have come forward to givea false evidence and apart from that, when the evidence of the socalled eyewitnesses is scrutinised carefully, it would clearlyindicate that their evidence are discrepant and thoroughlyunreliable. The learned counsel for the appellant added further thatthe medical opinion did not corroborate the ocular testimony. Apartfrom that, the so called confessional statements are alleged to havebeen recorded from A2 first and thereafter from A1 and suchconfessional statements are nothing but introduction of falsehood anda fabricated and concocted one. Added further, the learned counselfor the appellant contended that on the basis of the very sameevidence, the trial court was not ready to believe the case of theprosecution insofar as A2 and acquitted her and that the sameparameters are applicable to A1/appellant also and hence, he isentitled to for acquittal at the hands of this court.5.The learned counsel for the appellant in the second line ofargument, would submit that even assuming that the prosecution hasproved the factual position that the appellant/A1 had attacked thedeceased with bamboo stick and caused the deceased and all theeyewitnesses examined by the prosecution have spoken in one voicethat there was a long standing strained relationship between theparties and on the day of the occurrence, it was the deceased whowent to the house of the appellant and apart from that, there was apreceding quarrel between A1 and the deceased and in that suddenquarrel the appellant/A1 has attacked him with bamboo stick. It isalso pertinent to point out that it was only a bamboo stick and notany lethal weapon. Under such circumstances, it would be quite clearthat he had no intention to cause the death of the deceased andhence, the act of the appellant would not attract the penal provisionof murder and submitted that this court should consider the same.6.Heard the learned Additional Public Prosecutor on the abovecontentions and the court paid its anxious consideration on thesubmissions made on either side.7.It is not in controversy that one Lakshmanasamy, the son ofP.W.4, in an incident that took place on 17.03.2008 at about 9.30p.m. died on the spot and on the strength of Ex.P.1, the complaint,the case was taken on file and P.W.24, the Inspector of Police whowas in-charge of the respondent police, after conducting procedural https://hcservices.ecourts.gov.in/hcservices/ formalities, sent the dead body for Postmortem and the dead body wassubjected to postmortem by P.W.22, the doctor attached to GovernmentHospital, Udumulpet who has given a categorical opinion that thedeceased died out of shock and haemorrhage due to the injuriessustained on the brain and now, the fact that the deceased died outof homicidal violence was not disputed by the appellant before thetrial court and accordingly, the trial court did not feel anyimpediment in recording so and it has got to be affirmed. 8.In order to substantiate that it was the appellant/A1 whocaused the death of the deceased, the prosecution, to its advantage,had 8 witnesses and it is true that P.Ws.1 to 8 are inter-se relatedto each other and P.W.4 is the mother of the deceased. But, at thesame time, merely because on the ground of close relationship of thewitnesses to the deceased, their evidence cannot be rejected orlooked with doubt. But, before acceptance, this court must exercisethe test of careful scrutiny. Even after the exercise of the test,this court is satisfied that the evidence of those witnesses hadinspired this court since it is cogent and acceptable. Apart fromthat, all the witnesses are equally related to the accused also.But, the accused is unable to show any reason on why their evidenceshould not be believed. Also, all the eyewitnesses have spoken tothe fact that at the time when the occurrence has taken place, therewas a preceding quarrel and in which, in the heat of passion A1attacked the deceased with the bamboo stick and as a result,Lakshmanasamy died on the spot and hence, as rightly pointed out bythe trial Judge, this court has to accept the evidence of P.Ws.1 to 8who are the eyewitnesses to the occurrence. The ocular testimonyprojected through the evidence of P.Ws.1 to 8 stood fullycorroborated by the medical opinion given by P.W.22, the doctor whoconducted the postmortem through Ex.P.13. Added further, the bloodstained material objects which were recovered pursuant to theconfessional statements of the accused and the material objects whichwere recovered from the scene of occurrence were subjected tochemical analysis and the chemical analyst report and the serologistreports also tallies the blood group. Thus, the scientific evidenceis also in favour of the prosecution. In the face of the above, theevidence noticed by this court, all the contentions put forward bythe learned counsel for the appellant could not be accepted. Hence,they are liable to be rejected and accordingly, rejected and thetrial court is perfectly correct in recording the finding that it wasthe accused who attacked the deceased with bamboo stick and causedthe death instantaneously.9.Insofar as the second line of argument of the learned counselfor the appellant, this court is able to see some force in thecontention put forward. All the eyewitnesses have spoken in onevoice that there was a land dispute and the accused/appellant are onone side and P.W.4 and the deceased were on the other side and on thedate of occurrence also, it was the deceased who went to the house of https://hcservices.ecourts.gov.in/hcservices/ the accused to question the conduct and at that time, the occurrencehad taken place just in front of the accused and there was a wordyaltercation too and in the heat of passion and sudden quarrel, A1 hadattacked him with bamboo stick and caused the death. Thus, it wouldbe quite indicative of the fact that the appellant did not have anyintention to cause death. Thus, the act of the accused would be onlyculpable homicide not amounting to murder and it would attract 304[Part I] IPC and not 302 IPC. Hence, awarding punishment of sevenyears rigorous imprisonment, in the considered opinion of the court,would meet the ends of justice. 10.Accordingly, the appeal is partly allowed and the Judgment ofconviction and sentence imposed on the appellant/A1 by the learnedAdditional District and Sessions Judge, Fast Track Court No.II,Coimbatore dated 10.07.2009 in SC.No.258/2008 insofar convictionu/s.302 IPC, is set aside and instead, the appellant/A1 is convictedu/s.304 [Part I] IPC and sentenced to undergo seven years rigorousimprisonment. The Judgment of the trial court insofar as convictionu/s.341 IPC, the same is affirmed. Both the sentences are ordered torun concurrently. The period of sentence already undergone, shall begiven set off.ap Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Additional District and Sessions Judge Fast Track Court NO.II, Coimbatore.2.-do-through The Principal Sessiosn Judge, Coimbatore.3.The Inspector of Police Gudimangalam Police Station Udumalpet Taluk, Coimbatore District.4.The Public Prosecutor High Court, Chennai.5.The Superintendent, Central Prison, Coimbatore.1CC to Mr.K.Kalyanasundaram, Advocate (SR.58002)Judgment in Crl.A.No.505/2009NG (CO)SS (10.11.2009)