Murugesan.. v. State rep. By Inspector of Police Tirupur Rural Police Station Coimbatore District Cr.No.289/2005..

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23-6-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.No.214 of 2007 Murugesan.. AppellantvsState rep. By Inspector of PoliceTirupur Rural PoliceStationCoimbatore DistrictCr.No.289/2005.. RespondentCriminal appeal filed under Sec.378 of the Code of CriminalProcedure against the judgment of the Additional Sessions Judge, FastTrack Court No.V, Coimbatore at Tirupur, made in S.C.No.44 of 2006dated 30.5.2006.For Appellant: Mrs.jayasri BaskarFor Respondent: Mr.N.R.Elango Additional Public ProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Additional SessionsDivision, Fast Track Court No.V, Coimbatore at Tirupur in S.C.No.44of 2006 whereby A-1/appellant stood charged along with A-2, tried, found guilty under Sections 341 and 302 of IPC and sentenced to pay afine of Rs.500/- under Sec.341 IPC and to undergo life imprisonmentunder Sec.302 IPC, while A-2 was acquitted of the charges.

The short facts necessary for the disposal of this appeal canbe stated as follows: (a) P.W.3 is the wife of the deceased Sakthivel. P.W.1 is thesister of P.W.2. P.W.2 developed intimacy with A-1. They werecarrying on electric shop at Karur. Sustaining a loss, they went to Tirupur and were carrying on a grocery shop. There also A-1 had awayward life. Under the circumstances, P.W.1 brought her sisterP.W.2 home and helped her to have a petty shop. Accordingly she wascarrying on the same. When P.W.2 was carrying on the shop, Sakthivel, the husband of P.W.3, was assisting her in purchasing the https://hcservices.ecourts.gov.in/hcservices/ materials. The appellant who came to the place, on coming to knowabout the same, developed a grudge and thus he was on inimical termswith the deceased. (b) On the date of occurrence that was on 24.2.2005 when P.Ws.4and 6 were coming in a moped, they found the appellant along with theother accused standing in the way and waylaying the deceased who wascoming in a two wheeler, and A-1 stabbed him uttering the words"Because of you, Jothi is refusing to come and live with me.

The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 14 witnesses and also relied on 19 exhibits and17 material objects. On completion of the evidence on the side ofthe prosecution, the accused were questioned under Sec.313 of Cr.P.C.as to the incriminating circumstances found in the evidence of theprosecution witnesses, which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand on scrutiny of the evidence, took the view that the prosecutionhas proved the case beyond reasonable doubt in respect of A-1 andhence found him guilty and awarded the punishment while it acquitted https://hcservices.ecourts.gov.in/hcservices/ A-2. Hence this appeal at the instance of the A-1 before this Court.

Advancing arguments on behalf of the appellant, the learnedCounsel would submit that the occurrence, according to theprosecution, has taken place on 24.2.2005 at about 10.00 P.M.; thattwo witnesses were examined as P.Ws.4 and 6, out of whom P.W.4 hasturned hostile; that according to the prosecution, P.W.6 who claimedto be the relative of both the deceased and also P.Ws.1 to 3, hasseen the occurrence directly at about 10.00 P.M. on 24.2.2005; thathe was examined by the police only on 26.2.2005; that if reallyP.W.6, a relative, had seen the occurrence, he should have broughtthe same to the notice of P.Ws.1 to 3 either, or went to the policestation to lodge a complaint, but not done so; that this wouldclearly be indicative of the fact that P.W.6 could not have seen theoccurrence at all; that equally P.W.5 though claimed that he saw A-1standing with the knife nearby the dead body of the deceasedSakthivel, was examined by the police only on 26.2.2005; that he hasalso not informed to P.Ws.1 to 3 nor had he given a complaint; thatit also casts a doubt whether P.W.5 could have been in the place ofoccurrence at the time when the occurrence had taken place; thatP.W.4 has turned hostile and thus his evidence was not available tothe prosecution; that the Investigator would claim that A-1 wasarrested on 26.2.2005, and following the same, he gave a confessionalstatement voluntarily, and the same was recorded following which heproduced a knife, pant and shirt, all bloodstained, and they were allrecovered under a cover of mahazar; that the evidence of the Investigator was thoroughly belied by the evidence of P.Ws.1 to 3;that they have categorically stated that A-1 was taken from his houseat about 3.00 A.M. on 25.2.2005; that this would clearly indicatethat the alleged arrest, confession and recovery were nothing butfalse, and that part of the evidence should have been rejected.

Added further the learned Counsel that as per the inquestreport, the deceased was last found alive by one Jagannathan, butthat witness has not been examined and thus, the prosecution hasmiserably failed failed to prove its case.

Added further the learned Counsel in the second line ofargument that according to P.W.6, the eyewitness, there was a quarrelbetween the deceased and A-1 preceding the occurrence; that P.W.3 hascategorically admitted that the relationship became strained and A-1was inimical to the prosecution witnesses' family in view of the factthat the deceased Sakthivel was helping P.W.2 Jothi in the conduct ofher petty shop, and thus, all would go to show that there wassufficient cause for the appellant/A-1 getting provoked at the timeof the occurrence; that there was a quarrel also even according toP.W.6; that under the circumstances, the act of A-1 even assuming tohave been proved, would not attract the penal provision of murder, and this position has got to be considered by this Court.

The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made. https://hcservices.ecourts.gov.in/hcservices/

The facts that one Sakthivel, the husband of P.W.3, was doneto death in an incident that had taken place during the night hoursat about 10.00 P.M. on 24.2.2005, and following the same, the inquestwas made by the Investigator, P.W.14, and thereafter, the dead bodywas subjected to autopsy by P.W.10, the Doctor, are all remainedproved. The postmortem Doctor has given a categorical opinion thatthe deceased died due to shock and haemorrhage due to the injury toheart. The fact that he died out of homicidal violence was neverdisputed by the appellant before the trial Court, and hence it hasgot to be recorded so.

In order to substantiate that it was A-1 who stabbed him todeath, the prosecution examined two witnesses namely P.Ws.4 and 6,out of whom P.W.4 turned hostile. P.W.6 has categorically statedthat at about 10.00 A.M. on 24.2.2005, he was coming in a moped atthe place of occurrence, and at that time, he found A-1 along withthe other accused, and it was A-1 who stabbed him stating "So longyou are alive, Jothi would not come and live with me. " Despite thecross-examination in full, the evidence of P.W.6 remained unshaken. It is further to be pointed out that it is true that P.W.4 whoaccompanied P.W.6 had turned hostile. But it cannot be a reason toreject the testimony of P.W.6. The evidence of P.W.6 was cogent andalso inspired the confidence of the trial Court, and it has beenrightly accepted.

Apart from the evidence of P.W.6, the prosecution to itsadvantage had the evidence of P.W.5. According to P.W.5, he wasnearby the place of occurrence at that time, and he found the deadbody of Sakthivel, and A-1 was standing nearby with the knife inhand. This, in the considered opinion of the Court, is one of thestrong circumstances in favour of the prosecution and also stood incorroboration of the evidence of P.W.6.

Much comment was made by the learned Counsel for theappellant on the evidence of P.Ws.5 and 6 that they are related toP.Ws.1 to 3, and if they had really seen the occurrence, they shouldhave immediately rushed to the police station or informed to P.Ws.1to 3 about the occurrence; but not done so, and hence their evidencewas doubtful. In a given situation like this, the frame of mind andthe conduct of everybody would differ. P.Ws.5 and 6 after seeingsuch an occurrence, should have been under the grip of psychic fear, and under the circumstances merely because they have not informed tothe police immediately or went and informed to P.Ws.1 to 3, it cannotbe stated that they could not have seen the occurrence at all. Theywere examined by the police on 26.2.2005, and they have categoricallyspoken as found in the evidence before the trial Court. Nocontradiction or omission is brought to the notice of the trial Courtin their evidence. In such circumstances, the trial Court hasrightly accepted the evidence of P.Ws.5 and 6.

As far as the criticism levelled by the learned Counsel forthe appellant as to the arrest of A-1 and recovery of the materialobjects from him is concerned, this Court has to necessarily acceptthe same. Further, the Investigator claimed that A-1 was arrested on https://hcservices.ecourts.gov.in/hcservices/

26.2.2005. P.Ws.1 to 3 have categorically deposed that he was takenfrom his house on 25.2.2005, night at about 3.00 A.M. From thisevidence, it would be quite clear that the case of the prosecution asto the arrest, confession and recovery has got to be rejected. Evenafter rejection of that piece of evidence, the prosecution couldsustain its case in view of the evidence adduced by the prosecutionand discussed above. That apart, the medical opinion canvassed stoodin favour of the ocular testimony projected through P.W.6. Under thecircumstances, this Court has to necessarily record its finding thatit was A-1 who stabbed the deceased to death. As far as A-2 wasconcerned, the prosecution failed to bring home the guilt of A-2.The trial Court was perfectly correct in rejecting the case of theprosecution insofar as A-2.

Coming to the second line of argument that there was aquarrel preceding the occurrence, and it is spoken to by P.W.6 also, and A-1 was provoked by the deceased since he was assisting Jothi incarrying on the petty shop, and thus the act of A-1 would not attractthe penal provision of murder, the Court has to necessarilydiscountenance the same for the following reasons. From the evidenceit would be quite clear that P.Ws.1 and 3 are sisters of P.W.2. Itis not the case of the defence that the appellant/A-1 ever marriedP.W.2. However he developed illicit intimacy, and he was living withher at Karur and thereafter at Tirupur, and he also maintained her. At that juncture, it was P.W.1 who took her to the native place andalso helped her to carry on the petty shop. In that process thedeceased helped her. It is quite natural, and there is nothing foundto be against the ordinary course in lending a helping hand. Furtherin the instant case, the appellant/A-1 could not have anything to beprovoked. There is no provocation much less sudden provocation. According to P.W.6, they were actually quarrelling at that time. Ithas to be borne in mind that the occurrence has taken place duringnight hours in a public place. When the deceased was coming, he waswaylaid by A-1, and A-1 was armed with a knife. But the deceasedremained unarmed. Whenever a person remained unarmed, the person whowas armed with a weapon, would take advantage of the situation andstab him. Thus it cannot be stated to be any quarrel. Even thewords as spoken to by P.W.6, under the circumstances, cannot be takenas quarrel as one contemplated under the exception to Sec.300 IPC.Therefore, the act of A-1 was intentional in waylaying and stabbinghim. The act of A-1 would fall within the definition of murder asenvisaged under Sec.300 of IPC. The trial Court was perfectly correctin finding him guilty under Sections 341 and 302 of IPC and awardingpunishment as stated above. There is nothing to interfere in the sameeither factually or legally.

In the result, this criminal appeal fails, and the same isdismissed confirming the judgment of the trial Court. Sd/- Asst. Registrar/true copy/ Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ nsv/To:1.The Additional Sessions Judge Fast Track Court No.V Coimbatore at Tirupur. 2. The Inspector of Police Tirupur Rural Police Station Coimbatore District Cr.No.289/20053. The District Collector, Tirupur.4. The Director General of Police, Chennai.5. The Superintendent, Central Prison, Coimbatore. 6. The Public Prosecutor, High Court, Madras.+ 1 cc to Mr.Jaya Sri Baskar, Advocate, Sr.25486CRL.A.No.214 of 2007MBS(CO)EM/3.7.09