Muruganantham v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.12.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL No.686 of 2009Muruganantham.. Appellant/AccusedVs.State by The Inspector of Police,Vikramangalam Police Station,Cr.No.109 of 2007.. Respondent/ComplainantThis criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Principal district and SessionsJudge, Perambalur.For Appellant : Mr.M.V.BalakrishnanFor 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 District andSessions Division, Perambalur, made in S.C.No.141 of 2007 wherebythe sole accused/appellant stood charged under sections 307 and 302I.P.C. and on trial he was found guilty of the said charges andawarded seven years rigorous imprisonment along with fine ofRs.5000/-, in default, to undergo six months simple imprisonment andlife imprisonment along with fine of Rs.5000/-, in default, toundergo six months simple imprisonment respectively.2. The short facts necessary for the disposal of this appealcan be stated thus:(a) P.W.2 is the husband of the deceased. P.W.1 is the brotherof P.W.2. The accused/appellant belonged to the same villageKoilseemai. P.W.2 was cultivating the land of one Mahalingam onlease basis which was objected to by the accused. https://hcservices.ecourts.gov.in/hcservices/ (b) On the date of occurrence, that was on 3.7.2007 at about4.30 p.m., the deceased found the accused/appellant scolding herhusband. Immediately, she intervened and questioned the conducted ofthe accused. Suddenly, the accused got into the house and took anaruval, M.O.1 and attacked her on the right palm and on the leftside of her head. P.Ws.1, 2, 4 and 5 witnessed the occurrence. Healso attacked P.W.2 and he sustained injuries. The accused ranaway from the place of occurrence. (c) P.W.2 was taken to the Government Hospital in the vehicle(Tata Sumo car) of P.W.15. At about 7.50 p.m., P.W.14, doctormedically examined P.W.2 and found the injuries sustained by him.The accident register copy in that regard was marked as Ex.P8.(d) P.W.1 went to the Police Station and gave a complaint,Ex.P1 to P.W.16, Sub-Inspector of Police Vikramangalam who was onduty at that time. On the strength of Ex.P1 complaint, a case cameto be registered in Crime No.109/2007 under sections 307 and 302IPC at 19.00 hours. The express F.I.R., Ex.P10 was dispatched toCourt(e) P.W.17, Inspector of Police, on receipt of the F.I.R., tookup investigation. He proceeded to the spot made and inspection andprepared the observation mahazar Ex.P.2 and drew a rough sketchEx.P11. He recovered the blood stained earth and the sample earthM.O.3 and M.O.4 respectively in the presence of witnesses under acover of mahazar . He went to the mortuary and conducted autopsy onthe dead body of the deceased in the presence of witnesses andprepared Ex.P12, inquest report. Thereafter, the dead body wassubjected to post mortem.(f) On receipt of the requisition made by the InvestigatingOfficer, P.W.12 conducted autopsy on the deceased Pushpavalli andgave his opinion in the post mortem certificate that the deceasedwould appear to have died of injury to vital organ, shock andhaemorrhage 12-24 hrs prior to autopsy.(g) The accused was arrested on 4.7.2007 at 11.45 a.m and hecame forward to give confessional statement. The admissible part ofthe confessional statement was marked as Ex.P13 Pursuant to theconfessional statement made, the accused produced aruval M.O.1,weapon of crime, which was recovered under a cover of mahazar.Thereafter, he was sent for judicial remand. The material objectsrecovered from the place of occurrence, from the dead body of thedeceased and from the accused, pursuant to the confession made weresubjected to analysis and the Biology report- Ex.P15, Chemicalreport- Ex.P16 and serologist report- Ex.P17 were received and sentto Court. On completion of the investigation, the investigatingofficer filed a final report.(h) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution examined 17 witnesses andrelied on 17 exhibits and 9 material objects. On completion of theevidence on the side of the prosecution, the accused was questionedunder section 313 Cr.P.C as to the incriminating circumstances found https://hcservices.ecourts.gov.in/hcservices/ in the prosecution witnesses and the accused denied them as false.No defence witness was examined. On hearing the arguments advancedon either side, the trial Court found the accused guilty undersections 307 and 302 I.P.C and awarded 7 years rigorous imprisonmentand life imprisonment along with fine and default sentence. Hence,this appeal at the instance of the appellant.3. Advancing the arguments on behalf of the appellant,Mr.M.V.Balakrishnan, the learned counsel would submit that theprosecution has miserably failed to prove its case beyond reasonabledoubt. It is true, the prosecution has marked P.Ws. 1, 2, 4, 5 and 6as eye witnesses and also P.W.2 as injured witness. P.W.1 is thebrother of P.W.2. The deceased is the wife of P.W.2. P.Ws. 1 and 2are interested witnesses. If their evidence is put to carefullyscrutinised test, their evidence does not stand the test. Hence,their evidence should have been rejected by the trial Court. Insofaras P.Ws.4, 5 and 6 are concerned, they could not have seen theoccurrence at all. Their evidence are not only inconsistent but alsocontradictory to each other. Hence, their evidence could not begiven any evidentiary value. 4. Added further learned counsel, the accused also sustainedinjury. He was also examined by P.W.13 doctor and the accidentregister copy was marked as Ex.P8 for the injuries sustained by himbut the prosecution failed to give any explanation as to theinjuries sustained by the accused. This would go to show that theprosecution has suppressed the genesis and also the true factsbefore the Court and the evidence produced by the prosecution didnot speak about the injuries sustained by the accused.5. Added further learned counsel , the ocular testimonyprojected by the prosecution through the above so called eye-witnesses was not supported by the medical opinion canvassed throughthe post mortem doctor. Further, though all the 5 witnesses havedeposed that they were eye-witnesses, they could not account forthe external injuries sustained by the deceased. This would castdoubt whether they would have been present at the place ofoccurrence. The learned counsel would further submit that so far asthe recovery of M.O.1, aruval, pursuant to the alleged confessionalstatement is concerned, this is a cooked up document in order tostrengthen the prosecution case. All would go to show that theprosecution has miserably failed to prove its case but the trialCourt has taken an erroneous view as if the prosecution has provedboth the charges leveled against the accused.6. On the second line of argument, the learned counsel wouldsubmit, even if the Court comes to a conclusion that the prosecutionhas proved the factual position that it was the accused whoattacked P.W.2's wife and also caused her death, the act of theaccused would not attract the penal provision of murder. Even as https://hcservices.ecourts.gov.in/hcservices/ per the prosecution case, the occurrence has taken place in front ofthe thatched shed of the accused which is not nearby the house ofthe deceased. P.W.2 has gone to the house of the accused andquarrelled with the accused. When there was wordy altercationbetween the accused and P.W.2, it was the deceased who intervenedbetween them. Under such circumstances, being provoked, the accusedhas attacked her. Hence, the act of the accused is neitherintentional nor pre-planned but due to sudden provocation. Thislegal aspect has got to be considered by this Curt.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 Pushpavalli, wife of P.W.2was done to death in an incident that had taken place at about5.00 p.m. on 4.7.2007 at the place and time as put forth by theprosecution. Following the registration of the case by P.W.16 SubInspector of Police of Vikkaramangalam Police Station,investigation was taken by P.W.17 Inspector of Police and afterpreparation of the Inquest report,ExP.12 the dead body was subjectedto post mortem . P.W.12 doctor conducted autopsy and gave hisopinion as a witness before the Court and also through the contentsof the post mortem certificate,Ex.P7 that the deceased died out ofshock and haemorrhage due to the injuries sustained by her. Thecause of death as putforth by the prosecution was never disputed bythe appellant before the trial Court or this Court. Hence, thetrial Court is perfectly correct in recording that the deceasedPushapavalli died out of homicidal violence.9. In order to substantiate that it was the accused whoattacked the deceased and caused her death instantaneously, theprosecution marched five eye witnesses who are P.Ws. 1, 2, 4, 5 & 6.Out of these five witnesses, P.W.2 was not only eye witness but alsoinjured witness. It is well settled proposition of law that in agiven case like this when an eye witness happens to be the injuredwitness, the evidence of such witness cannot be discarded unless anduntil strong reason or circumstances are noticed by this Court. Inthe instant case, the evidence of P.Ws. 1 and 2 would clearlyindicate the fact that at the time of occurrence there was wordyaltercation between P.W.2 and the accused and at that time, the wifeof P.W.2 intervened. Immediately, he went inside the house and tookan aruval and attacked her. In that process, P.W.2 also sustainedinjuries. When his wife was being attacked by the accused, heintervened to block the aruval and immediately was also attacked bythe accused. Insofar as this occurrence is concerned, the evidenceof P.ws.1, 2, 4, 5 and 6 are natural, cogent and convincing.Therefore, the Court is unable to notice any reason which would castdoubt muchless reasonable doubt on the testimony of these witnesses.Apart from this, the ocular testimony of these witnesses https://hcservices.ecourts.gov.in/hcservices/ corroborates with the medical evidence canvassed through the postmortem doctor P.W.12, the post mortem certificate, Ex.P.7 and theaccident register copy, Ex.P.8 in respect of P.W.2.10. Yet another circumstance which was against the appellantwas the recovery of M.O.1 aruval, weapon of crime from the accusedpursuant to the confessional statement voluntarily given by him.This piece of evidence would be pointing to the nexus between theaccused and the crime. Under such circumstances, the contentionputforth by the learned counsel for the appellant narrated above, donot carry any merits whatsoever and they are liable to be rejected,accordingly rejected. The prosecution was successful enough to provethat it was the accused who attacked the deceased Pushpavalli at thetime and caused her death of the deceased and also caused injuriesto P.W.2. 11. Insofar as the second line of argument putforth by thelearned counsel for the appellant is concerned, the Court is able tosee force in the contention. Admittedly, the occurrence has takenplace at 5.00 p.m. on 3.7.2007 As could be seen from the ObservationMahazar, Ex.P2 and also the sketch marked as Ex.P.11, it would bequite clear that the occurrence has taken place just in front of thethatched shed of the accused. The occurrence has not taken place ina public place or field. It is quite clear that at the time, P.W.2and the deceased have gone to the house of the accused. There waswordy altercation between P.W.2 and the accused. When wordyaltercation was going on, it was the deceased who intervened.Immediately, the accused got provoked. He took an aruval andattacked her. Thus, the act done by the accused cannot be said to beeither intentional or premeditated or pre-planned. But at the sametime, he has got the knowledge that by attacking her with aruval onher head, the death would likely to be ensued. Under thesecircumstances, the act of the accused would not attract the penalprovision of murder, but it would be one culpable homicide notamounting to murder. Therefore, the Court is of the opinion thatthe act of the accused would attract the penal provision of section304 (I) I.P.C and awarding punishment of 7 years R.I. would meet theends of justice. In sofar as section 307 IPC is concerned, from themedical opinion canvassed through Ex.P.8, accident register, it isseen that P.W.2 has sustained only simple injuries and therefore,the Court is of the opinion that the accused should be punishedunder section 324 IPC in this regard and awarding two years rigorousimprisonment would meet the ends of justice.12. Accordingly, the conviction and sentence imposed on theappellant under sections 302 and 307 I.P.C are modified and instead,the appellant is convicted under sections 304(I) and 324 I.P.C.respectively and sentenced to undergo 7 years R.I. and 2 years R.I.respectively. The period of sentence already undergone by the https://hcservices.ecourts.gov.in/hcservices/ appellant is ordered to be given set off. The fine amount anddefault sentence imposed by the trial Court will hold good. 13. With the above modification in conviction and sentence,this criminal appeal is dismissed.vsiSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1. The Principal district and Sessions Judge, Perambalur.2. The Inspector of Police, Vikramangalam Police Station,3. The Public Prosecutor, High Court, Chennai.4. The Superintendent, Central Prison, Trichy.Copy to:The Section Officer,Crl Section, High Court, Madras.+ 1 cc to Mr.M.V.Balakrishnan, Advocate SR No.69927CRL. APPEAL No.686 of 2009PA(CO)SR/5.1.2010