Kumar v. The State of Tamilnadurep. by Inspector of Police,Marandahalli Police Station,Palacode,Dharmapuri District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.01.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRIMINAL APPEAL NO.275 OF 2008Kumar.. AppellantVs.The State of Tamilnadurep. by Inspector of Police,Marandahalli Police Station,Palacode,Dharmapuri District.. Respondent This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Additional SessionsJudge, Fast Track Court, Dharmapuri made in S.C.No.147 of 2007,dated 4.3.2008. For Appellant : Mr.R.SelvakumarFor Respondent: Mr.P.Kumaresan, APP - - - - JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the Additional SessionsDivision, Fast Track Court, Dharmapuri made in S.C.No.147 of2007, whereby the sole accused/appellant stood charged underSection 302 IPC, tried, found guilty as per the charge andawarded life imprisonment and to pay a fine of Rs.2000/-, indefault to undergo one year R.I.2.The short facts necessary for the disposal of this appealcan be stated thus:a)The accused/appellant is the younger brother of thedeceased Raghu. They were residing at Marandahalli within the https://hcservices.ecourts.gov.in/hcservices/ jurisdiction of the respondent police station. When P.W.1, theVillage Administrative Officer of Marandahalli, was in his officeat about 8.00 p.m. on 29.01.2005, the accused appeared before himand gave a confessional statement that he attacked his brother atabout 3.30 p.m. in front of the house of P.W.4 and the severelyinjured was taken to Primary Health Centre, Marandahalli, wherehe was given initial treatment by P.W.7, the Doctor andthereafter, he was taken to Dharmapuri Government Hospital, buton the way, he died. The same was recorded by P.W.1, which wasmarked as Ex.P.1. P.W.1 prepared his own report, which was markedas Ex.P.2. He produced Exs.P.1 and P.2 along with the accusedbefore the respondent police station. b)P.W.14, the Sub Inspector of Police, who was on duty atthat time, on receipt of Exs.P.1 and P.2, registered a case incrime No.45 of 2005 under Section 302 IPC. He also recoveredM.O.1, aruval from the accused under a cover of mahazar. Ex.P.19,the F.I.R. was despatched to the Court. c)A copy of the F.I.R. was placed before P.W.15, theInspector of Police, who took up the investigation, proceeded tothe spot and made an inspection in the presence of the witnesses.He prepared Exs.P.3 and P.4, the observation mahazars andExs.P.20 and P.21, the rough sketches. Then, he conducted inqueston the dead body of the deceased in the presence of the witnessesand panchayatdars and prepared Ex.P.22, the inquest report. Thematerial objects from the place of occurrence were recoveredunder a cover of mahazar. P.W.15 recorded the statement of thewitnesses. Then, the dead body was sent to the GovernmentHospital, Palacode for the purpose of autopsy. He also caused thearrest of the accused, who came forward to give confessionalstatement, which was recorded in the presence of the witnesses,the admissible part of which was marked as Ex.P.13. M.Os.4 and 5,dhoti and shirt of the accused were recovered under a cover ofmahazar. The accused was sent for judicial remand. All thematerial objects recovered were subjected to chemical analysis bythe Forensic Science Department. Ex.P.11, the Chemical Analyst'sreport and Ex.P.12, the Serologist's report were received. d)P.W.8, the Doctor attached to the Government Hospital,Palacode, on receipt of the requisition, has conducted autopsy onthe dead body of the deceased and has issued Ex.P.8, the post-mortem certificate, wherein she has opined that the deceasedwould appear to have died of shock and haemorrhage due to severedexternal jugular vein about 18 to 24 hours prior to autopsy. e)Further investigation was taken up by P.W.16, theInspector of Police, who on completion of the investigation, hasfiled final report. 3.The case was committed to the Court of Sessions andnecessary charges were framed. In order to substantiate thecharges levelled against the accused, the prosecution examined 16witnesses and also relied on 23 exhibits and 7 M.Os. Oncompletion of the evidence on the side of the prosecution, theaccused was questioned under Section 313 Cr.P.C. as to theincriminating circumstances found in the evidence of prosecution https://hcservices.ecourts.gov.in/hcservices/ witnesses, which he flatly denied as false. No defence witnesswas examined. The trial court, after hearing the argumentsadvanced on either side and looking into the materials available,took the view that the prosecution has proved the case beyondreasonable doubt, found the accused guilty as per the charge andawarded life imprisonment along with fine and default sentence.Hence this appeal has arisen at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, thelearned counsel would submit that the entire case of theprosecution is rested upon the circumstantial evidence; that theprosecution had no direct evidence to offer; that the prosecutionmainly rested upon the case on the extra judicial confessionalleged to have been given by the accused to P.W.1, the V.A.O. onthe very day of occurrence; that when the entire documents andalso the evidence of P.W.1 are scrutinized, it would clearlyspeak the fact that they were only false and were created by theInvestigating agency to suit the case of prosecution; that in theinstant case, the cause of death was neither proved nor broughtforth before the court; that the scientific evidence was also notsupporting the prosecution case; that it is pertinent to pointout that M.O.4, dhoti and M.O.5, shirt of the accused wererecovered pursuant to the alleged confessional statement of theaccused, but they were cooked up records and created to suit theprosecution case; that there was no reason as to why the accusedappeared before P.W.1, the V.A.O. to speak about the allegedoccurrence; that it is not the case of the prosecution that P.W.1was known or acquainted to the accused and under thesecircumstances, such confessional statement could not be given bythe accused as put forth by the prosecution; that though theprosecution came forward to state that the occurrence has takenplace in front of the house of P.W.4 and there was a quarrel,which was spoken by the witnesses, no one has spoken about theincident, but have turned hostile and thus, it would make itclear that such an occurrence has not taken place and theprosecution has miserably failed to prove its case.5.The learned counsel, in his second line of argument, wouldsubmit that, even assuming that the factual position that it wasthe accused, who attacked his brother with aruval and as a directconsequence he died, is taken to have been proved by theprosecution, the act of the accused would not attract the penalprovision of murder; that even as per the case of theprosecution, on the date of occurrence, it was the wedding day ofthe accused and it was the deceased who gave Rs.50/- as a gift tothe accused, but he demanded for the return of the same in theafternoon and there was a wordy quarrel and in that wordyquarrel, it was the deceased who beat the accused and under thesecircumstances, due to quarrel and being provoked, the accused hasattacked the deceased with aruval and thus, the act of theaccused would not attract the penal provision of murder and hencethis aspect has got to be considered by this court. https://hcservices.ecourts.gov.in/hcservices/

6.The court heard the learned Additional Public Prosecutoron the above contentions and has paid its anxious considerationon the submissions made.7.It is not in controversy that Raghu, the elder brother ofthe accused, was actually attacked by the accused and he wasgiven first aid at Marandahalli Primary Health Centre andthereafter, he was taken to the Government Hospital, Dharmapuri,but on the way he died. Thus, according to the prosecution, itwas the homicidal violence. The fact that the deceased died outof homicidal violence was never disputed by the appellant beforethe trial court. Apart from that, in order to prove the same, theprosecution has examined P.W.8, the Doctor, who has conductedpost-mortem on the dead body of the deceased and has issuedEx.P.8, the post-mortem certificate, wherein she has opined thatthe deceased would appear to have died of shock and haemorrhagedue to the injuries sustained. Hence no impediment is felt by thetrial court in recording so and rightly too. 8.In order to substantiate that it was the accused whoattacked his elder brother Raghu with aruval on his neck and asa direct consequence, he died, the prosecution had no directevidence to offer. But, it mainly relied on extra judicialconfession made by the accused before P.W.1, V.A.O. Beforeaccepting the extra judicial confession and to sustainconviction, the court has to apply two tests. Firstly, thecircumstances attendant in which such extra judicial confessionwas made and secondly, whether the evidence of a person to whomsuch extra judicial confession was made, has inspired theconfidence of the court. Even after application of the above twotests, the court is thoroughly satisfied that Ex.P.1, the extrajudicial confession has got to be accepted. 9.Admittedly, P.W.1 is the Village Administrative Officer ofthe very same place. The occurrence has taken place at about 3.30p.m. in front of the house of P.W.4. Though P.W.4 has turnedhostile, he has spoken to an extent that there was a quarrelbetween the brothers and thereafter the occurrence has followed.The accused has gone to the Village Administrative Officer andhas narrated the entire incident and it has been recorded by him.According to P.W.1, he recorded the extra judicial confession andalso prepared Ex.P.2, the report and produced the accused alongwith Exs.P.1 and P.2 and the weapon of crime before therespondent police station. All these things are actually foundplaced in the F.I.R. itself and it has reached the court within areasonable time. Thus, the court is of the considered opinionthat this piece of evidence placed before the trial court wasactually pointing to the guilt of the accused. 10.The added circumstance was the scientific evidence. Fromthe dead body of the deceased, M.Os.6 and 7, shirt and lungi wererecovered. At the time of arrest of the accused, he made https://hcservices.ecourts.gov.in/hcservices/ confessional statement voluntarily, which was recorded underEx.P.13, pursuant to which, he produced M.Os.4 and 5,bloodstained dhoti and shirt. All these material objects weresubjected to analysis by the Forensic Science Department, whichresulted in Ex.P.11, the Chemical Analyst's report and Ex.P.12,the Serologist's report, wherein it has been indicated that allthe clothes recovered from the accused and also from the deadbody of the deceased contain the very same blood group, Thus, thescientific evidence was also in favour of the prosecution.Therefore, these two circumstances, in the considered opinion ofthe court, would be pointing to the guilt of the accused that itwas he who attacked his brother with aruval and as a directconsequence, the death has ensued. 11.So far as the second line of argument put forth by thelearned counsel for the appellant is concerned, the court is ofthe considered opinion that it has got force. Even as per theprosecution case, it was the wedding day of the accused on thedate of occurrence and on that morning, the deceased gave Rs.50/-as a gift to the accused, but he demanded the return of the samein the afternoon. When there was a refusal on the part of theaccused, the deceased beat him and following the same, theaccused attacked the deceased with aruval. When a gift is made toa person on his wedding day, no question of demanding for thereturn of the same would arise. But, unusually, the deceased hasmade a demand for the same and there was a quarrel between thebrothers in front of the house of P.W.4, which was spoken byP.W.4. In that process, due to sudden quarrel and provocation,the accused has attacked the deceased. Thus, the act of theaccused at no stretch of imagination can be termed as murder, butit would be one culpable homicide not amounting to murder.Therefore, the act of the accused would attract the penalprovision of Section 304(I) IPC and awarding punishment of 7years R.I. would meet the ends of justice.12.Accordingly, the conviction and sentence imposed on theappellant by the trial court under Section 302 IPC are set asideand instead, the appellant is convicted under Section 304(I) IPCand sentenced to undergo 7 years R.I. The period of sentencealready undergone by the appellant is ordered to be given setoff. The fine amount and the default sentence imposed by thetrial court under Section 302 IPC shall hold good. With the abovemodification in conviction and sentence, this criminal appeal isdismissed. VvkSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Additional Sessions Judge, Fast Track Court, Dharmapuri.2.Do Through The Principal Sessions Judge, Dharmapuri.3.The Superintendent, Central Prison, Vellore.4.The Public Prosecutor, High Court, Madras.5.The Inspector of Police, Marandahalli Police Station, Palacode, Dharmapuri District.Copy to:-The Section Officer,Criminal Section,High Court of Madras,Madras 104.+ 1 cc to Mr. R. Selvakumar Advocate SR No.3208MBS(CO)SR/5.2.2009CRL.A.NO.275 OF 2008