Chinniah @ Jayaraj v. The Inspector of PoliceR-9, Valasaravakkam Police StationChennai 89

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17-12-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCRL.A.No.610 of 2009andM.P.No.2 of 2009Chinniah @ Jayaraj.. Appellant/AccusedvsThe Inspector of PoliceR-9, Valasaravakkam Police StationChennai 89,(Crime No.71/2008).. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Principal SessionsJudge, Tiruvallur, made in S.C.No.111 of 2008 dated 7.8.2009.For Appellant: Mr.R.BalasubramanianFor Respondent: Mr.Babu Muthu Meeran Additional PublicProsecutorJUDGMENT(Judgment of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Principal SessionsDivision, Tiruvallur, made in S.C.No.111 of 2008 whereby the soleaccused/appellant stood charged under Sections 450 and 302 of IPC,tried, found guilty as per the charges and awarded 10 years RigorousImprisonment along with a fine of Rs.1000/- and default sentenceunder Sec.450 IPC and life imprisonment along with a fine ofRs.1000/- and default sentence under Sec.302 IPC.2.Short facts necessary for the disposal of this appeal can bestated as follows:(a) P.W.1 is the wife of the deceased Krishnamoorthy. P.W.2 isthe brother and P.W.4 is also another sister of P.W.1. P.W.3 was aCarpenter by profession working in the house of P.W.1 at the time ofoccurrence. On the date of occurrence i.e., 18.1.2008 at about 4.30P.M., when P.W.1 and her husband along with P.W.2 and the child weresitting in the house, the accused came there, got a chisel fromP.W.3 who was doing carpentry work during the time, and uttering thewords "you were responsible for myself not getting the property",attacked Krishnamoorthy with the chisel on the head and chest. He https://hcservices.ecourts.gov.in/hcservices/ fell down in a pool of blood. Immediately, the accused ran awayfrom the place of occurrence throwing the chisel on the ground.(b) P.Ws.1 and 2 took Krishnamoorthy with severe injuries toKMC Hospital, where P.W.7 was the Doctor on duty. He noted theinjuries found on him, and the wound certificate is marked as Ex.P4.The Doctor has also declared him dead. Thereafter, an intimation wasgiven to P.W.12, the Inspector of Police, attached to the respondentpolice station who came to the hospital at about 7.15 P.M. P.W.1gave Ex.P1, the complaint, to him, on the strength of which, P.W.12registered a case in Crime No.71 of 2008 under Sec.302 of IPC. Theprinted FIR, Ex.P13, was despatched to the Court.(c) P.W.12 took up investigation, proceeded to the spot, madean inspection and prepared an observation mahazar, Ex.P7, and also arough sketch, Ex.P14. Then he recovered the material objects fromthe place of occurrence including the chisel. He went to themortuary, conducted inquest on the dead body in the presence ofwitnesses and panchayatdars and prepared an inquest report, Ex.P16.(d) On receipt of the requisition made, P.W.9, the Tutor,Department of Forensic Medicine, Government Kilpauk Medical College,Chennai, conducted autopsy on the dead body of Krishnamoorthy andhas issued a postmortem certificate, Ex.P6, with his opinion thatthe deceased would appear to have died of asphyxia due to cut injuryof the trachea, haemorrhage and shock. (e) Pending investigation, the accused was arrested on19.1.2008, and he gave a confessional statement. The same wasrecorded. He was sent for judicial remand. The witnesses were alsotaken to the Judicial Magistrate No.I, Poonamallee, for recordingtheir statements under Sec.164 Cr.P.C. They were also recorded. Allthe material objects recovered from the place of occurrence and fromthe dead body, were subjected to chemical analysis by the ForensicSciences Department which resulted in Ex.P19, the Serologist'sreport. On completion of investigation, the Investigator filed thefinal report. 3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 12 witnesses and also relied on 19 exhibits and7 material objects. On completion of evidence on the side of theprosecution, the accused was questioned under Sec.313 of Cr.P.C., asto the incriminating circumstances found in the evidence of theprosecution witnesses which he flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedon either side and took the view that the prosecution has proved thecase beyond reasonable doubt and hence found him guilty and awardedthe punishment as referred to above. Hence this appeal at theinstance of the appellant.4.Advancing arguments on behalf of the appellant, the learnedCounsel Mr.R.Balasubramanian would submit that in the instant case,the prosecution has miserably failed to prove its case thoughmarched P.Ws.1 to 3 as eyewitnesses; that it is true that P.W.1 isthe wife of the deceased; that there was actually a property disputebetween P.W.2 and the appellant/accused who are brothers in whichthe interference was made by the deceased unlawfully; that apartfrom that, it is actually an accident in which he fell down and hadcontact with the chisel which was on the floor, and he sustained https://hcservices.ecourts.gov.in/hcservices/ injuries; that the accident has been converted into one of murder;that it is their intention that if the accused is sent to jail,P.W.2 could get his share in the property wholly; and that under thecircumstances, they have given a false complaint. 5.Added further the learned Counsel that P.W.1 at the time ofcross-examination has categorically admitted that she went to thepolice station and gave a complaint, which is marked as Ex.P1; thaton the contrary, P.W.12, the Investigator, would claim that onreceipt of the intimation he went to the hospital and got thecomplaint from P.W.1, which is marked as Ex.P1; that in the instantcase, there are two contradictory statements; that originally, therewas a complaint given to the police by P.W.1 and it was received byP.W.12 at the police station; that the same has been suppressed;that had it been really brought before the Court, it would haveunfolded the truth; but, that has been suppressed; and that the non-production of the first complaint given by P.W.1 and received byP.W.12, was actually fatal to the prosecution case. 6.Added further the learned Counsel that as far as P.W.2 wasconcerned, he could not have seen the occurrence at all; that apartfrom that, he is an interested party to get entire property; that asfar as P.W.3 was concerned, at the time of cross-examination, he hascategorically admitted that he has not seen the occurrence at all,and hence his evidence was not useful to the prosecution; that apartfrom that, the trial was not properly conducted; that there was noproper appreciation of evidence by the trial Court; that P.W.1 hasgiven a petition that she must be recalled for giving evidence sinceshe was compelled to give such a false evidence; and that the samehas not been considered by the trial Court. 7.The learned Counsel would further submit that it was P.W.7,the Doctor, who declared him dead; that Ex.P4 is the woundcertificate wherein it is mentioned that a known person hasassaulted him with a knife; but, according to the prosecution, itwas a chisel; that a perusal of Ex.P4 would indicate that there areonly two external injuries found; but, the postmortem certificatewould show number of injuries; that all would go to show that theso-called eyewitnesses could not have seen the occurrence at all;that in the instant case, the claim of the Investigator was that thechisel was recovered from the place of occurrence; that when it wassubjected to chemical analysis, it did not contain human blood atall; that all would go to show that the prosecution has miserablyfailed to prove its case, and hence he is entitled for acquittal inthe hands of this Court.8.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its consideration on thesubmissions made.9.It is not in controversy that one Krishnamoorthy, the husbandof P.W.1, in an incident that had taken place at about 4.30 P.M. on18.1.2008, was done to death. When he was taken to the KMCHospital, it was P.W.7, the Doctor, who declared him dead.Following the registration of the case under Sec.302 IPC by P.W.12,the Inspector of Police, the inquest was made by him at the https://hcservices.ecourts.gov.in/hcservices/ mortuary, and after the preparation of the inquest report, it wasP.W.9, the Doctor, who conducted autopsy on the dead body and hasgiven his opinion as a witness before the Court and also through thecontents of the postmortem certificate, marked as Ex.P6, that hedied out of asphyxia due to cut injury of the trachea, haemorrhageand shock. Now the contention put forth by the learned Counsel forthe appellant is that it was not a homicidal violence; but, it wasdue to accident. It is the defence plea before the trial Court andbefore this Court also that when he fell down and had contact withthe chisel which was on the ground, such injuries have been actuallycaused. A perusal of Ex.P4, the wound certificate, the earliestdocument, wherein the external injuries are noted, and also thepostmortem certificate, Ex.P6, wherein the external injuries andalso the corresponding internal injuries are noted, would clearlyindicate that there was piercing of the chisel into the chest, andalso the injury sustained on the head should have been caused byanother person. Thus, the contention put forth by the learnedCounsel for the appellant that the injuries were sustained due toaccident has got to be brushed aside in view of the contents in thepostmortem certificate and also the Doctor's evidence. It would bequite clear that the death was caused by homicidal violence asrightly recorded by the trial Court.10.In order to establish that it was the accused who attackedthe deceased with the chisel and caused the death, the prosecutionexamined P.Ws.1 to 3. P.W.1 is the wife and P.W.2 is the brother-in-law of the deceased. It is true that there was a propertydispute earlier between the parties and also during the relevanttime. But, at the same time, P.W.1 has categorically stated alongwith P.W.2 in one voice that they were actually in the house whenP.W.3 was carrying on the carpentry work, and the accused came overthere and attacked him on the head and also on the chest uttering"you were responsible for myself not getting the property", and heran away from the place. P.Ws.1 and 2 despite cross-examinationhave withstood the test, and their evidence is cogent, convincingand acceptable by the Court. 11.As far as P.W.3 was concerned, the learned Counsel broughtto the notice of the Court that he has well admitted at the time ofcross-examination that he has not seen the occurrence at all. It istrue that he has not seen the occurrence; but, he has categoricallystated that he was doing carpentry work in the house of the deceasedat the time of occurrence; that it was the accused who got thechisel from his hand and proceeded to the upstairs; that he alsofollowed him when the accused went to the upstairs; and that hefound the accused coming down from the upstairs. This would clearlyindicate that the accused got the chisel from P.W.3, and after doingthe act, he was coming down which was noticed by P.W.3. To thisextent, the evidence of P.W.3 was available to the prosecution. Inview of this evidence coupled with the evidence of P.Ws.1 and 2 whoare eyewitnesses, this Court had no hesitation to accept theevidence since it inspires the confidence of the Court. That apart,the evidence of these eyewitnesses stood fully corroborated by themedical opinion canvassed through the postmortem Doctor and also thecertificate given by him. https://hcservices.ecourts.gov.in/hcservices/

12.Now the contention put forth by the learned Counsel for theappellant is that whether Ex.P1 has come into existence either atthe police station or at the hospital is doubtful. But, in theconsidered opinion of this Court, P.W.1 was the person who lost herhusband, and it was she who along with P.W.2, took the deceased tothe hospital. An intimation has also been received by P.W.12 whenhe was in the police station. He rushed to the KMC hospital atabout 7.15 P.M. and got Ex.P1 from P.W.1. Ex.P1 was the onlycomplaint given as spoken to by P.W.1. Whether it was received atthe hospital or at the police station does not make anything muchsince it was the only complaint given by P.W.1 and received byP.W.12, and on the strength of the same, a case came to beregistered. 13.Apart from the above, the learned Counsel would submit thatP.W.1 gave a petition before the trial Court at the time of thetrial for reopening her evidence. After the evidence was over andthe matter was ripe for arguments, a petition was filed, and henceit cannot but be under compelled circumstances. In the instantcase, the trial Court has conducted trial properly, and for cross-examination, full opportunity has been given, and the witnesses havebeen examined. No infirmity is noticed by this Court. 14.Above all, the discrepancy in the external injuries found inEx.P4, the wound certificate, and in Ex.P6, the postmortemcertificate, cannot in any way advance the case of the defence forthe simple reason that P.W.7, the Doctor, who medically examined thebody of Krishnamoorthy has declared him dead immediately, and hencehe has noted only a few injuries. But, within a short span of time,the postmortem has been conducted. Under the circumstances, thereis nothing to doubt the same. 15.It remains to be stated that at the time when the occurrencehas taken place, there was nothing provocative, nor was there anyquarrel. But, it was the accused who went over there, got thechisel from P.W.3, attacked the deceased on the head and also on thechest causing instantaneous death and ran away from the place whichis clear from the ocular testimony which stood fully corroborated bythe medical opinion. Under the circumstances, the trial Court wasperfectly correct in accepting the case of the prosecution, findinghim guilty and awarding the punishments as stated supra. Nothing isfound to disturb the judgment of the trial Court either factually orlegally.16.In the result, this criminal appeal fails, and the same isdismissed confirming the judgment of the trial Court. Consequently,connected MP is also dismissed.nsvSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To:1.The Principal Sessions Judge Tiruvallur.2.The Judicial Magistrate No.1, Poonamalee.3.The Chief Judicial Magistrate, Chengalpattu.4.The Director General of Police, Mylapore Chennai.5.The District Collector, Tiruvallur.6.The Superintendent of Central Prison, Puzhal, Chennai.7.The Inspector of Police R-9, Valasaravakkam Police Station Chennai 89, (Crime No.71/2008) 8.The Public Prosecutor, High Court, Madras.Copy to:The Section Officer,Criminal Section,High Court, Madras.+ 2 ccs to Mr. R. Balasubramanian, Advocate SR No.69109PUR(CO)SR/8.1.2010CRL.A.No.610 of 2009