Kumar v. State rep. by Inspector of Police

BAIL SLIPThe Appellant / Accused was directed to be released on Bail in and bythe order of this Court dated 14.12.2006 made in Crl.M.P.No.4439/2006in C.A.No.173/2006 on the file of the High Court, Madras - 104.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.06.2008CORAM:THE HONOURABLE MR.JUSTICE P.D.DINAKARANandTHE HONOURABLE MR.JUSTICE K.N.BASHACriminal Appeal No.173 of 2006Kumar.. Appellant/AccusedVs.State rep. byInspector of Police,Mettur Police Station,Salem District.Crime No.316 of 2004.. Respondent/Comaplainant* * *Prayer : Criminal Appeal filed under Section 374 (2) of the Code ofCriminal Procedure against the Judgment of conviction and sentencedpassed by the learned Principal Sessions Judge, Salem, in S.C.No.148of 2005 dated 18.11.2005. * * *For Appellant: Mr.K.Gandhi KumarFor Respondent: Mr.N.R.Elango Additional Public ProsecutorJ U D G M E N T(Judgment of the court was delivered by K.N.BASHA, J.) The sole accused, Kumar, has come forward with this appealchallenging the Judgment of conviction and sentence passed by thelearned Principal Sessions Judge, Salem, dated 18.11.2005 made inS.C.No.148 of 2005 convicting the appellant for the offence underSection 302 IPC and sentencing him to life imprisonment and alsoimposing a fine of Rs.1,000/-, in default, to undergo six monthsrigorous imprisonment and convicting him under Section 449 IPC andsentencing him to seven years rigorous imprisonment and imposing afine of Rs.1,000/-, in default, to undergo six months simpleimprisonment. https://hcservices.ecourts.gov.in/hcservices/

2. The occurrence in this case is shown to have taken place on21.07.2004 at about 9.15 a.m. at the house of the deceased as theaccused is the paramour of the deceased and as the deceased left theaccused along with her children to the house of P.W.1, the accusedabusing the deceased that he has taken care of her and her children,but she has gone and joined with P.W.1 assaulted her with a cotframe, M.O.1, on her head and as such the deceased died on the sameday at 4.20 p.m. in spite of the treatment given to her at the SalemGovernment Mohan Kumaramangalam Hospital. 3. The prosecution, in order to substantiate its case, examinedP.Ws.1 to 15, filed Exs.P.1 to P.31 besides marking M.Os.1 to 8.4. The facts of the case as unfolded through the evidence adducedby the prosecution during the course of trial are as follows :(i) P.W.1 is related to the accused as the accused is his cousin.The deceased was already married to one Annadurai and three childrenwere born out of the wedlock. P.W.1 was already married to oneRamayee, but she died. Thereafter P.W.1 developed intimacy with thedeceased and both of them were living together along with thechildren of the deceased, as husband and wife. As the accused is thecousin of P.W.1, he used to visit frequently to the house of P.W.1and developed intimacy with the deceased, Kannagi. One day, P.W.1saw the deceased and the accused in a compromising position in thebed. On seeing P.W.1, the accused ran away from that place. Therewas a quarrel between P.W.1 and the deceased. The deceased left withher children to Pallipalayam. P.W.1 used to go to meet her childrenand called the deceased once again to his place, but the deceasedrefused. Thereafter, they entered into an agreement to liveseparately as per Ex.P.1 stating that there will be no relationshipbetween them. Thereafter, after four days P.W.1 had not met thedeceased and once again he developed the relationship with thedeceased and frequently used to meet her and the children and theywere leading a life together at Mettur. P.W.1 admitted the son ofthe deceased in a school at Mettur after getting the TransferCertificate from the old school. While P.W.1 along with the deceasedleft the house for admitting P.W.2, daughter of the deceased, withTransfer Certificate on 21.07.2004 at 9.15 a.m., the accused snatchedthe Transfer Certificate from the hands of the deceased and tore thesame. P.W.1 questioned the conduct of the accused, for that, theaccused stated that he has taken care of the deceased and thechildren for one year. The accused then pushed down P.W.2. Thedeceased raised hue and cry. The accused questioning the conduct ofthe deceased took a cot frame, M.O.1, which was lying on the spot andbeat the deceased on her left fore-head and on the head andthereafter ran away from the scene with M.O.1. P.Ws.3 and 4 onhearing the hue and cry, rushed to the scene and took the injuredalong with P.W.1 in an auto to the Government Hospital, Mettur.(ii) The Doctor, P.W.7, attached to the Government Hospital,Mettur, examined the deceased on 21.07.2004 at 9.30 a.m. The doctorfound the deceased was unconscious and found the following injuries, https://hcservices.ecourts.gov.in/hcservices/ as per Ex.P.14, Accident Register: (1)Lacerated injury right frontal region 4 X 2 cm.(2)Lacerated injury left parietal region 5 X 2 cm(3)Bleeding from left ear contusion, left eye lid 3 X 2cm.(iii) On 21.07.2004 at 10.15 a.m, P.W.13, Sub Inspector ofPolice, received the intimation from the Government Hospital and wentto the hospital. He found the deceased was unconscious and as suchobtained a statement from P.W.1 under Ex.P.2. P.W.13 registered acase in Crime No.316 of 2004 for the offence under Section 307 IPC.Ex.P.27 is the Express First Information Report. He has sent theFirst Information Report to the Court and to the higher policeofficials.(iv) P.W.14, the Inspector of Police, received the FirstInformation Report on 21.07.2004 and took up investigation. Hereceived the death intimation, Ex.P.28. As per the death intimation,the deceased died on 21.07.2004 at 4.20 p.m. The death of thedeceased was informed to P.W.1. P.W.14, thereafter, altered theoffence under Section 302 IPC. Ex.P.29 is the Express FirstInformation Report and he sent the same to the Court.(v) P.W.14 went to the Government Hospital and examined P.W.1.He held inquest on the dead body of the deceased on 22.07.2004 from6.30 a.m. to 11.00 a.m. Ex.P.30 is the inquest report. Duringinquest, he examined P.Ws.2, 3 and 4 and others. He also recordedfurther statement from P.W.1. He sent the body for post-mortem.(vi) The Doctor, P.W.10, conducted post-mortem on the dead bodyof the deceased on 22.07.2004 at 12.05 p.m. and found the followinginjuries :(1)A sutured wound over right forehead 2 xm X 1 cm bonedeep.(2)Sutured wound over left occipital region 3 X 5 X bonedeep.(3)Sutured wound over left occipital region 2 cm X 5 cm bonedeep.(4)Sutured wound over left parietal region 1.5 X 0.5 cm Xbone deep.(5)Sutured wound over left occipital region 1 cm X 0.5 cm Xbone deep.(6)Contusion over left parietal region 5 cm X 3 cm DR(7)Contusion over left occipital region 6 cm X 3 cm DR(8)Contusion over right frontal region 3 X 3 cm DR(9)Fracture over left parietal 4 cm in length(10)Sub dural and sub arachnoid haemorrhage over the rightfrontal region.(11)Extra dural haemorrhage over the right frontal region.(12)Fracture base of the skull on right frontal region 6 cmin length.(13)Both eyes are back eye. All are anti-mortem in nature.Extremities: Finger and toe nails intact pale. Peritoneal https://hcservices.ecourts.gov.in/hcservices/ Cavity : Empty Fleura:Empty. Heart: Chambers and valvesnormal. Cavities contained minimized blood. CaronaryVessels : Patent Great Vessels : Normal. Lungs: C/s pale.Trachea: Intact. Hyoid bone: Intact. Stomach: Contained 200ml of thick whitish fluid with no specific smell. Mucosapale. Liver : c/s pale. Spleen : c/s pale. Kidneys : bothon c/s pale. Small Intestine : yellowish chyme present nospecific smell. Mucosa pale. Bladder : Empty. Uterus :Normal in size. Cavities empty. Pelvis : Intact. Brain :O/s Pale. Spinal column : Intact."The Doctor opined that the deceased would appear to have died of headinjuries. Ex.P.19 is the Post-mortem Certificate.(vii) P.W.14 went to the scene of occurrence with P.W.3 andprepared the rough sketch, Ex.P.31 and the Observation Mahazar,Ex.P.6 in the presence of witnesses. He recovered the bloodstainedearth, M.O.2 and sample earth, M.O.3, bloodstained coconut leaf,M.O.4 and piece of bloodstained admission sheet, M.O.5. He sentP.W.2 for medical examination.(viii) The Doctor, P.W.8, attached to the Government Hospital,Mettur, examined P.W.2 on 22.07.2004. He found the followinginjuries, as per Ex.P.16, Accident Register :(1)C/o pain left arm(2)C/o pain left forearm(ix) P.W.14 made arrangements to record the statement from thewitnesses, P.Ws.1 to 4 and others under Section 164 Cr.P.C. by theJudicial Magistrate. On the same day, he arrested the accused infront of Sakthivel Medical Shop. In pursuance of the admissibleportion of the confession of the accused, he recovered M.O.1,bloodstained wooden cot frame. He recovered the bloodstained shirt,M.O.6 and bloodstained pant, M.O.7 from the accused. He sent theaccused with police memo for medical examination.(x) The Doctor, P.W.9, attached to the Government Hospital,Mettur, examined the accused brought by the police with police memoon 27.07.2004 at 9.45 a.m. and found the following injuries, as perEx.P.17, Accident Register :(1)Contusion over forehead right side 1" X 1"(2)Abrasion over the lower neck 1 cm X 1/2 cm.Thereafter the accused was remanded to judicial custody. P.W.14 sentthe material objects for chemical examination through the Court.(xi) P.W.15 took up further investigation and examined thephotographer and other witnesses, namely, the Doctors, who haveexamined P.W.2 as well as the accused and the Doctor, who hasconducted post-mortem. After receiving the post-mortem certificate,Ex.P.19, chemical examination report, Ex.P.24, Serologist report,Ex.P.26, grouping test report, Ex.P.25 and after completing theinvestigation, P.W.15 filed the charge sheet against the accused forthe offence under Sections 449, 302 and 323 IPC. https://hcservices.ecourts.gov.in/hcservices/

5. When the accused was questioned under Section 313 Cr.P.C. inrespect of the incriminating circumstances appearing against him, theaccused denied each and every circumstance as contrary to the factsand stated that he has been falsely implicated in this case. Theaccused has not chosen to examine any witness on his side.6. Mr.Gandhikumar, learned counsel for the appellant contendedthat the prosecution has not come forward with clear and consistentevidence and there are several infirmities in the prosecution case.It is submitted that the eye-witness, P.W.1 lived with the deceasedfor a substantial time as husband and wife. P.W.2, eye-witness, isthe daughter of the deceased, and as such they are the interestedwitnesses and there is no independent witness to speak about theactual occurrence. It is submitted that there are contradictions inmaterial particulars between the witnesses, P.Ws.1 and 2. Thelearned counsel would further contend that the accused has alsosustained injuries as per the medical evidence of the Doctor, P.W.9and there is no explanation given by the prosecution for suchinjuries which raises a serious doubt about the origin of theoccurrence. It is finally contended by the learned counsel that evenassuming that the accused caused the death of the deceased, he couldnot have been imputed with the intention of causing the death of thedeceased as only a wooden cot frame was used by the accused.7. Per contra, Mr.N.R.Elango, learned Additional PublicProsecutor, contended that the prosecution has come forward withclear and cogent evidence through the eye-witnesses, P.W.s.1 and 2.It is submitted that the evidence of eye-witnesses, P.Ws.1 and 2 isalso further corroborated by the medical evidence and P.Ws.3 and 4 asboth of them have seen the accused immediately after the occurrencewith wooden cot frame at the scene place and they have also spokenabout the motive put forward by the prosecution. It is alsosubmitted that the evidence of the eye-witnesses, P.Ws.1 and 2, isalso corroborated by the medical evidence as there are correspondinginjuries found on the deceased, as per the post-mortem certificate,Ex.P.19. The learned Additional Public Prosecutor would furthersubmit that the accused trespassed into the house of the deceased andas such the defence cannot raise a plea that the accused could nothave had an intention to cause the death of the deceased. Therefore,it is contended that the prosecution has proved its case beyondreasonable doubt in all aspects.8. We have given our careful and anxious consideration to therival contentions put forward by either side and also perused theimpugned judgment of conviction.9. The prosecution heavily placed reliance on the evidence ofeye-witnesses, P.Ws.1 to 4. Though it is seen that P.Ws.1 and 2 arerelated to the deceased as P.W.1 was living with the deceased ashusband and wife and P.W.2 is none else than the daughter of thedeceased and as such she is an interested witness, on that score wecannot reject their evidence and the only requirement is toscrutinize their evidence with great care and caution. https://hcservices.ecourts.gov.in/hcservices/

10. At the outset, we are not able to see any infirmity in theevidence of the eye-witnesses, P.Ws.1 and 2 and their evidence isnatural and clear implicating the accused for attacking the deceased.11. The evidence of the eye-witnesses, P.Ws.1 and 2 is furthercorroborated by the evidence of P.Ws.3 and 4, who have rushed to thescene house on hearing the hue and cry and found the accused at thescene with M.O.1, wooden cot frame and also abusing and scolding thedeceased and their evidence is also not shattered by the defenceduring the course of their cross-examination. The evidence of P.Ws.1and 2 is also corroborated by the medical evidence as there arecorresponding injuries as per the post-mortem, Ex.P.19. The factremains that even the motive is also proved by the prosecution asP.Ws.1 to 4 categorically stated about the accused scolding andabusing the deceased and as already pointed out, apart from theevidence of P.Ws.1 and 2, the witnesses, P.Ws.3 and 4 have also seenthe accused immediately after the occurrence with wooden cot framenear the deceased at the scene house. Therefore, we have nohesitation to hold that the deceased died due to homicidal violenceand that too at the hands of the accused.12. We are also not able to appreciate the contention of thelearned counsel for the appellant to the effect that the non-explanation of the injuries sustained by the accused. It is seen asper the Accident Register, Ex.P.17, the accused sustained only minorand superficial injuries. The Hon'ble Apex Court has held inShajahan V. State of Kerala reported in 2007 AIR SCW 2123 as follows :"14. Non-explanation of injuries by the prosecutionwill not affect the prosecution case where injuriessustained by the accused are minor and superficial or wherethe evidence is so clear and cogent, so independent anddisinterested, so probable, consistent and creditworthy,that it outweighs the effect of the omission on the part ofprosecution to explain the injuries. As observed by thisCourt in Ramlagan Singh V. State of Bihar (AIR 1972 SC 2593)prosecution is not called upon in all cases to explain theinjuries received by the accused persons."13. Now, therefore, we are left with the consideration of thecrucial question of nature of offence said to have been committed bythe accused.14. In order to consider the above said question we have toscrutinize the materials available on record through the evidence ofeye-witnesses, P.Ws.1 and 2 carefully. It is pertinent to be notedthat the undisputed fact remains that the accused went to the houseof P.W.1 as unarmed. It is also seen from the materials that boththe accused and the deceased were living as husband and wife forquite sometime and the accused has taken care of the deceased and herchildren and the deceased deserted the accused once again and joinedwith P.W.1 with whom she was living as husband and wife earlier, that https://hcservices.ecourts.gov.in/hcservices/ caused provocation to the accused and as such the accused went to thehouse of P.W.1. It is also seen that the accused has not evenentered inside the house of P.W.1 and as per the evidence of P.Ws.1and 2, while P.W.1 along with the deceased and P.W.2 came out of thehouse, the accused came there and quarreled with the deceased bytearing the Transfer Certificate, which was kept by the deceased inher hands and scolded her and while P.W.1 questioned the conduct ofthe accused, the accused stated that he was taking care of thedeceased and children for one year, but she joined P.W.1. It is alsopertinent to be noted that as per the Observation Mahazar, Ex.P.6,the occurrence took place in front of the house of P.W.1. It is seenthat only thereafter he has taken M.O.1, wooden cot frame, which waslying on the spot and beat the deceased. Therefore, right from theaccused proceeding towards the house of P.W.1 and abusing andscolding the deceased by snatching the Transfer Certificate andtearing the same and ultimately culminating into assaulting thedeceased with M.O.1, wooden cot frame which was lying on the spot andtaken by the accused, there is no time gap and happened within ashort span of time which makes it crystal clear that the accusedattacked the deceased without any premeditation or pre-plan and heattacked the deceased only on the spur of the moment. It is alsopertinent to be noted that the accused dealt with the blows on thehead of the deceased. Therefore, the sequence of events and theentire scenario of the occurrence clearly shows that the accusedcould have been imputed with the intention to cause such bodilyinjury as is likely to cause death and as such the offence committedby the accused is punishable under Section 304 (I) IPC.15. For the aforesaid reasons, we are constrained to set asidethe conviction and sentence imposed on the appellant for the offenceunder Section 302 IPC by the learned Principal Sessions Judge, Salem,in S.C.No.148 of 2005 dated 18.11.2005 and instead the appellant isconvicted under Section 304 (I) IPC and sentenced to undergo sevenyears rigorous imprisonment.16. In view of our findings to the effect that the occurrence asper the version of eye-witnesses, P.Ws.1 and 2, took place outsidethe house of P.W.1 and the prosecution has not proved that theaccused trespassed into the house of P.W.1, the conviction andsentence of seven years rigorous imprisonment imposed on the accusedfor the offence under Section 449 IPC are also hereby set aside.With the above modification in conviction and sentence, thisappeal is partly allowed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ ggTo1. The Principal Sessions Judge, Salem.2. The Judicial Magistrate, Mettur.3. - do – thro" the Chief Judicial Magistrate, Salem.4. The District Collector, Salem.5.The Director General of Police, Chennai.6. The Superintendent, Central Prison, Coimbatore.7. The Inspector of Police, Mettur Police Station, Salem District.8. The Public Prosecutor, Madras High Court, Madras. Judgment inCrl.A.No.173 of 2006MA(CO)SRA(07/07/2008)