Jeeva @ Jeevarathinam v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.12.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL No.652 of 2009Jeeva @ Jeevarathinam ..AppellantVs.State byThe Inspector of Police,R.8 Vadapalani Police Station,Chennai.(Crime No.154/2008) ..RespondentThis criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Principal Sessions Judge, Chennaimade in S.C.No.372/2008 dated 30.9.2009 For Appellants : Mr.N.DuraiswamiFor Respondent : Mr.Babu Muthu Meeran, Addl.P.PJ 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 Court of Sessions madein S.C.No.372 of 2008 whereby the sole accused/appellant stoodcharged, tried and found guilty of murder and awarded lifeimprisonment along with a fine of Rs.5000/- with default sentence.2. The short facts necessary for the disposal of this appeal canbe stated as follows:(a) P.W.1 is the wife of the deceased. The deceased was runninga tea stall at Gangaiamman koil street, Vadapalani, Chennai. P.W.2was working as a tea master in that shop. P.W.3 was the neighbour.On 3.2.2008, on a Sunday at about 4.30 p.m. when the deceased P.Ws.1, 2 and 3 were present in their shop, the accused came there andordered for tea. According to P.W.2, he gave tea to the accused. Notsatisfied with the quality of the tea, he got angry and threw theeatables kept in the stall. P.W.1 objected to the same. At that time, https://hcservices.ecourts.gov.in/hcservices/ the accused abused her in filthy language. On hearing this, thedeceased/husband of P.W.1 intervened and the accused threatened himthat he would kill him and left the place.(b) At about 5.30 p.m., the husband of P.W.1 took Rs.3/- forpurchase of evening newspaper and went outside. When he just wentfrom the shop, P.Ws. 1 and 2 heard distress cry of the deceased. Theycame out of the shop and witnessed the accused who caught of thedeceased by his neck and stabbed him with M.O.1 knife. P.Ws. 1 to 3witnessed the occurrence. When P.Ws. 1 to 3 went nearby and crowdgathered, the accused, fled away from the place of occurrence. (c) P.W.1 took her husband to the Best Hospital situate nearbythe place but there she was advised to take him to the GovernmentHospital. Then, they went to the Government Hospital, Royapettah. (d) P.W.7, doctor who was on duty at that time, gave first aid.Ex.P5 is the accident register copy. Despite treatment, Arumughamdied at about 7.30 p.m. P.W.1 proceeded to the respondentPolice Station and gave a complaint to P.W.12 at 8.30 p.m. On thestrength of Ex.P1, a case came to be registered under Section 302IPC. The F.I.R.,Ex.P.11 was despatched to court.(e) P.W.12, Inspector of Police took up investigation. Heproceeded to the spot, made an inspection and prepared theobservation mahazar, Ex.P.2 and drew a rough sketch Ex.P.12. Heconducted inquest on the dead body and prepared Ex.P.13, inquestreport. Thereafter, the dead body was subjected to post mortem. (f) On the requisition made by the investigating officer, P.W.7,doctor conducted autopsy on the dead body of the deceased and issuedEx.P4, post mortem certificate wheren he has opined that the deceasedwould have died out of shock and haemorrhage due to the injuriessustained by him, 17 to 20 hours prior to autopsy. (g) Pending investigation, the accused was arrested on 4.2.2008He came forward to give confessional statement voluntarily. The samewas recorded in the presence of witnesses. The admissible part of theconfessional statement was marked as Ex.P9. Then, he produced M.O.1,knife and also M.O.4, blood stained shirt which were recovered undera cover of mahazar. The material objects were sent for analysis andreports were received namely Ex.P6 and Ex.P9 chemical and serologistreports respectively. On completion of the investigation, theinvestigating officer filed a final report. (h) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges, theprosecution examined 12 witnessed and relied on 16 exhibits and 4material objects. On completion of the evidence on the side of theprosecution witnesses, the accused was questioned under section 313 https://hcservices.ecourts.gov.in/hcservices/ Cr.P.C and he denied them as false. No defence witness was examined.The Court heard the arguments advanced on either side and took theview that the prosecution has proved the case beyond reasonable doubtand awarded life imprisonment along with fine and default sentence,which is the subject matter of challenge before this Court.3. Advancing the arguments on behalf of the appellant, thelearned counsel would submit, in the instant case, the prosecutionhas examined three witnesses as eye witnesses and relied on othercircumstances but miserably failed to prove its case. P.W.1 hascategorically spoken that the occurrence has taken place not in theshop or front of the shop but it has taken place in front ofVinayaga temple which is situated nearby the place. Thus, P.W.1 whowas in the shop and P.W.2 tea master could not have seen theoccurrence at all. P.W.3 neighbour is the close associate and alsothe interested witness. So far as the place of occurrence isconcerned, the evidence of the investigator was not consistent tothe evidence of P.Ws.1 to 3. Even the observation mahazar and therough sketch prepared by the investigating officer was not clear asto the place of occurrence.4. Added further learned counsel, admittedly, P.W.1 had statedthat he took the deceased immediately to the Best Hospital but nodoctor was examined in that regard and even the medical documentswere not obtained and nothing was produced before the Court. The nonproduction of that piece of evidence is fatal to the prosecution case.5. The learned counsel would further submit that P.W.9, doctorwho gave treatment in the Royapettah Government Hospital hascategorically deposed that P.W.1 has stated that her husband wasattacked by unknown person. Thus, it would be quite clear that P.W.1could not have seen the occurrence at all. Added further learnedcounsel, the investigator would claim that M.O.1 knife was producedand recovered from the open ground and it is a place where publiccould access. Therefore, the recovery, cannot but be false. 6. Added further learned counsel, P.Ws.1 to 3 eye- witnesses tothe occurrence have deposed that the accused stabbed the deceasedonly once but there are two external injuries. Thus, P.Ws.1 to 3could not account for the injuries sustained by the deceased. Addedfurther learned counsel, the blood stained earth was not recoveredfrom the place of occurrence. Had it been true that the occurrencehas taken place, there should have been blood stains. The nonrecovery of the blood stained earth would clearly indicate that suchan occurrence could not have taken place at all as putforth by theprosecution. Hence, the prosecution has miserably failed to prove itscase but the trial Court has taken an erroneous view and has renderedthe judgment of conviction and sentence which has got to be set asideby this Court. https://hcservices.ecourts.gov.in/hcservices/

7. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.8. It is not in controversy that one Arumugham, husband ofP.W.1, following the incident that had taken place at 5.45 p.m.on 3.2.2008 was taken to the Government Hospital, Royapettah,Madras who succumbed to the injuries at about 7.30 p.m. A casecame to be registered by P.W.12, Inspector of Police under section302 IPC. The Investigator made inspection and conducted inquest onthe dead body and prepared the inquest report, Ex.P.13 and the deadbody was subjected to post mortem. P.W.7, doctor who conductedautopsy gave his opinion that the deceased would appear to have diedof shock and haemorrhage due to the injuries sustained by him. Thetime and cause of death of he deceased as putforth by theprosecution was never disputed by the appellant at any stage of theproceedings. Hence, it could be safely recorded that the deceasedArumugham died out of homicidal violence.9. In order to substantiate that it was the accused who stabbedthe deceased and as a direct consequence death has occurred, theprosecution examined three witnesses viz., P.Ws. 1 to 3. P.W.1 isthe wife of the deceased. P.W.2 is the tea master in the shop of thedeceased. P.W.3 is a neighbour. All have stated in one voice that onthe date of occurrence at about 3.30 to 4.00 p.m, the accused came tothe shop of the deceased and ordered for a tea and the same wassupplied to him. Since the accused was not satisfied with the qualityof the tea, he threw the eatables available in the shop. When P.W.1questioned the same, the accused abused her with filthy language.Naturally, as the husband of P.W.1, the deceased questioned the same.At that time, the accused made a challenge that he would finish himoff. Following the same, within a few hours at about 4.45 p.m,when the deceased went to buy evening newspaper, P.Ws.1 to 3 heardthe distress cry of the deceased. They came out of the shop andnoticed the accused stabbing deceased Arumugham with a knife. Theevidence of P.Ws.1 to 3, despite careful scrutiny, stood the test.Thus, the evidence of P.Ws. 1 to 3 inspires the confidence of theCourt. The trial Court has accepted their evidence and rightly too.The evidence projected through these witnesses truthfullycorroborated by the medical evidence canvassed through P.W.7, thedoctor who conducted post mortem on the dead body of the deceased. Hehas categorically deposed before the Court as a witness and throughthe contents of the post mortem certificate that the injuries werefound on the chest and abdomen.10. Yet another circumstance which stood against theappellant/accused was the recovery of M.O.1 knife and M.O.4 bloodstained shirt. They were recovered pursuant to the confessionalstatement made by the accused in the presence of witnesses. Thewitnesses have also been examined. Despite cross examination, their https://hcservices.ecourts.gov.in/hcservices/ evidence remains unshaken. The trial Court has accepted the evidenceand this part of the evidence, confessional statement and therecovery of M.O.1 and M.O.4 would be pointing the nexus between thecrime and the accused.11. Now the contention putforth by the learned counsel for theappellant that the non examination of the medial person in the BestHospital was fatal to the prosecution, cannot be countenanced for thesimple reason that P.W.1 has categorically stated that immediatelyafter the occurrence, she had taken him to the Best Hospital but thedoctor had advised her to take him to the Government Hospitalimmediately. Therefore, no one could be examined in the BestHospital. Further, insofar as the place of occurrence is concerned,the contents of the Observation mahazar and also the rough sketchprepared by the investigating officer was never questioned by theappellant before the trial Court. P.Ws. 1 to 3 have categoricallyspoken to the fact that the deceased went out of the tea stall and hewas just moving from that place, at that time, the occurrence hadtaken place which was just before Vinayaka temple which actuallyfound in the observation mahazar and the rough sketch. Further, thecontention putforth by the learned counsel for the appellant thatthere are two external injuries found on the dead body and P.Ws. 1 to3 have spoken only about one injury, hence, it is highly doubtful isconcerned, this contention cannot be accepted for the simple reasonthat when they heard the distress cry, P.Ws.1 to 3 came out of theshop and had witnessed only the later part of the occurrence.Therefore, this point cannot be in favour of the accused/appellant. 12. Further, the non production of the history sheet of thedeceased from the Government Hospital Royapettah, cannot be a reasonto doubt the prosecution case. From the place of occurrence, thedeceased Arumugham was taken to the Best Hospital. Thereafter he wastaken to the Government Hospital, Royapettah situated 10 kms where hewas examined by P.W.9, doctor and within a short span of time, thedeceased died. Under such circumstances, the non-production ofhistory sheet will not in any way tilt the case of the prosecution.The learned counsel for the appellant brought to the notice of theCourt that P.W.9 doctor has given evidence before the Court hascategorically stated that when P.W.1 brought her deceased husbandshe has stated that her husband was attacked by unknown person. Thisevidence of P.W.9 doctor cannot be countenance in view of thecontents in the accident register, Ex.P5 where it has been clearlystated that when P.W.1 brought her husband, she has stated that herhusband was attacked by one known person. Under such circumstances,this contention of the learned counsel, do not carry merits. 13. The prosecution is able to show that the accused came to theshop at about 3.30 p.m. and quarrelled in the tea stall and furtherthrew the eatables on the ground and abused P.W.1 in filthy language.Naturally, the deceased who is the husband of P.W.1 questioned the https://hcservices.ecourts.gov.in/hcservices/ accused and thereafter, the accused left the place. The accused cameback at about 5.45 p.m. armed with knife and stabbed the deceased andas a direct consequence, the deceased died. Thus, it would be quiteclear that it was a pre-planned act of the accused. Hence, the trialCourt is perfectly correct in finding the accused/appellantguilty under section 302 I.P.C. and awarding life imprisonment.Hence, the judgment of the trial Court has got to be sustained.14. Accordingly, the appeal fails and the same is dismissedconfirming the judgment of conviction and sentence passed the trialCourt. Sd/-Asst. Registrar//true copy//Sub Asst.Registrar vsiTo1.The 17th Metropolitan Magistrate, Saidapet, Chennai-15.2.-Do- Through The Chief Judicial Magistrate, Egmore, Chennai-8.3. The Principal Sessions Judge, Chennai4.The Director General of Police, Mylapore, Chennai-4.5.The Collector of Chennai.6.The Superintendent, Central Prison, Puzhal, Chennai.7. The Inspector of Police, R.8 Vadapalani Police Station, Chennai.8. The Public Prosecutor, High Court, Chennai.1 cc to Mr.N.Doraisamy, Advocate, Sr.No.67856CRL. APPEAL No.652 of 2009KJI {CO}TP/23.12.2009.