Ganesan v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23-1-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRL.A.No.356 of 2006Ganesan .. Appellant/Accused-1vsThe State of TamilnaduRep by Inspector of PolicePanamarathu Patti Police StationCrime No.15/2005Salem District.. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of Cr.P.C. against thejudgment of the Principal Sessions Judge, Salem, in S.C.No.305 of2005 dated 1.3.2006.For Appellant: Mr.M.DevarajFor Respondent: Mr.P.Kumaresan Additional PublicProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Principal SessionsDivision, Salem, made in S.C.No.305 of 2005 whereby the appellant/A-1stood charged along with A-2 under Sections 341 and 302 read with 34of IPC, and on trial, A-1 was found guilty under Sections 302 and 341of IPC and awarded life imprisonment along with a fine of Rs.1000/-and default sentence and six months Simple Imprisonment respectively,while the learned trial Judge recorded an order of acquittal of A-2.2.The short facts necessary for the disposal of this appeal canbe stated thus:(a) P.W.5 is a resident of Thippampatty, and he was doing cooliework. The deceased Karadi @ Chinnasamy was known to him. One yearprior to the date of occurrence, A-2 the wife of A-1, was foundmissing. It came to the knowledge of A-1 and P.W.5 that she wasliving with the deceased at Periyagoundapuram. Then they went overto that place and brought her back just 15 days prior to theoccurrence, and thereafter, A-2 was living with her husband A-1during the relevant time. https://hcservices.ecourts.gov.in/hcservices/ (b) On the date of occurrence namely 4.4.2005, at about 10.30A.M., P.W.5 heard the noise near the house of A-1. Immediately hewent over there. A-1 told that some one was lying there withinjuries. The very day, P.W.2, the brother's wife of P.W.1, onseeing the deceased with severe injuries, informed P.W.1, and P.W.1in turn rushed to the place. He found the deceased with bleedinginjuries and P.Ws.1 and 2 asked him at about 12.00 P.M., how hehappened to sustain injuries. He narrated that he had illicitintimacy with A-2, and he came that day to take her, and at thattime, he was tied by A-1 and A-2, and both of them attacked him witha wooden log and an iron pipe, and thus he sustained injuries.Immediately, P.Ws.1 and 2 took him to the Government MohanKumaramangalam Medical College Hospital, Salem, at 2.45 P.M. P.W.12,the Doctor, who was on duty, admitted him and gave treatment. Theaccident register copy is marked as Ex.P16. The further treatmentwas given by P.W.11, the Doctor. Despite the same, he died at theHospital. Immediately, P.W.1 proceeded to the respondent policestation and gave a complaint under Ex.P1. P.W.15, the Sub Inspectorof Police, who was on duty, on the strength of Ex.P1, the report,registered a case in Crime No.15 of 2005 under Sections 341, 324 and302 of IPC. The printed FIR, Ex.P22, was despatched to the Court. (c) P.W.16, the Inspector of Police, who was in charge of MallurPolice Station, on receipt of the copy of the FIR took upinvestigation, proceeded to the spot, made an inspection and preparedan observation mahazar, Ex.P5, and also a rough sketch, Ex.P23. Heconducted inquest on the dead body in the presence of witnesses andpanchayatdars and prepared, Ex.P24, the inquest report. Then, arequisition, Ex.P17, was given to the hospital authorities for thepurpose of postmortem.(d) P.W.13, the Professor of Forensic Medicine, Government MohanKumaramangalam Medical College Hospital, on receipt of the saidrequisition, conducted autopsy on the dead body of Karadi @Chinnasamy and has given his opinion in Ex.P18, the postmortemcertificate, that the deceased would appear to have died of shock andhaemorrhage due to multiple injuries.(e) On 7.4.2005, at about 6.30 A.M., when P.W.6, the Chairman ofVikram Memorial Matriculation School, Mallur, was in his house, theaccused appeared before him and gave a confessional statement, andthe same was recorded by him in his letter pad, and it is marked asEx.P4. Thereafter, he produced both the accused before therespondent police. Both were enquired by the Investigator. A-1 gavea confessional statement. The admissible part is marked as Ex.P7.Pursuant to the same, M.O.3, wooden log, M.O.4, rope, and M.O.5, ironpipe, produced by him were recovered under a cover of mahazar. Theywere sent for judicial remand. (f) The witnesses were produced before the Judicial MagistrateNo.II, Salem, who is examined as P.W.10, before whom they gavestatements which were recorded under Sec.164 of Cr.P.C. They wereall produced before the Court. The material objects recovered fromthe place of occurrence and from the dead body and M.Os.3 to 5 weresubjected to chemical analysis which has brought forth Ex.P20, thechemical analyst's report, and Ex.P21, the Serologist's report. On https://hcservices.ecourts.gov.in/hcservices/ completion of investigation, the Investigating Officer filed thefinal report.3.The case was committed to Court of Session, and necessarycharges were framed. In order to establish the charges, theprosecution examined 16 witnesses and also relied on 23 exhibits and7 material objects. On completion of the evidence on the side of theprosecution, the accused were questioned under Sec.313 of Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advanced,scrutinised the materials available and took the view that theprosecution has proved the case beyond reasonable doubt and henceentered a judgment of conviction of A-1 and awarded the punishmentreferred to above. Hence this appeal at the instance of theappellant/A-1. 4.Advancing arguments on behalf of the appellant, the learnedCounsel Mr.Devaraj would submit that according to the prosecution,the occurrence has taken place on 4.4.2005 at 10.30 A.M.; that A-1was the husband of A-2, and A-2 was kept by the deceased for a periodof one year or two prior to the occurrence as per the prosecutioncase; that the prosecution has miserably failed to prove its case;that P.W.5 was shown as a person who actually met the deceased at theplace of occurrence immediately after the occurrence; that P.W.5 hasnot spoken about any utterance made by the deceased or as to theincident at all; that under the circumstances, it would be quiteclear that the deceased could not have spoken anything to anybody,and hence the entire evidence of P.Ws.1 and 2 as if the deceased madean oral dying declaration to them could not but be false; thataccording to P.W.1, the complaint was written by him and was takento the police station; but, at the time of evidence, he would statethat it was written by the Sub Inspector of Police, and it was alsoat about 7.00 P.M.; that according to the Sub Inspector of Police, itwas recorded at 4.30 P.M.; and that it is highly doubtful whetherEx.P1 could have come into existence as put forth by the prosecution. 5.Added further the learned Counsel that in the instant case,first he was taken to Government Mohan Kumaramangalam Medical CollegeHospital, and P.W.12 was the Doctor who admitted him, and he wasfound to be conscious; but, the name of the person who admitted himand also the name of the injured all remained unknown; and that if tobe so, the evidence of P.Ws.1 and 2 as if he gave a dying declarationshould have been rejected. The learned Counsel would further addthat in the instant case, except this the prosecution had no evidenceto offer, and even all the material objects as if they were recoveredfrom A-1 pursuant to the confessional statement were all cooked uprecords. 6.Added further the learned Counsel that in the case on hand,even assuming the factual position put forth by the prosecution is tobe taken as proved, the act of the accused would not attract thepenal provision of murder; that admittedly, A-2 was the wife of A-1;that A-2 was actually taken away and kept by the deceased for aperiod of more than one year; that just 15 days prior to theoccurrence, it was P.W.5 who intervened and got her back, and thus, https://hcservices.ecourts.gov.in/hcservices/ A-1 and A-2 were living for 15 days peacefully in their place; thatat that time, it was the deceased who came there to take her again,and it is quite natural for a husband to become provoked; that underthe circumstances, he attacked him; that at that time he was notarmed with any deadly weapon, but only a stick and iron pipe whichwas used in the kitchen; that it is further to be pointed out thatthe injuries as found in the postmortem certificates were external,and they were simple; that the appellant had no intention to causethe death or premeditation with which he has acted; that it cannot betermed as murder, and this has got to be considered by the Court.7.The Court heard the learned Additional Public Prosecutor on theabove contentions and paid its anxious consideration on thesubmissions made.8.It is not in controversy that the severely injured namelyKaradi @ Chinnasamy was taken from the place of occurrence to theGovernment Mohan Kumaramangalam Medical College Hospital, and it wasP.W.12, the Doctor, who gave treatment to him, and the accidentregister copy is marked as Ex.P16. Within a short span of half anhour at about 3.20 P.M. on the date of occurrence namely 4.4.2005, hedied. Following the inquest made by the Investigating Officer, thedead body was subjected to autopsy by P.W.13, the Doctor, who gavehis categorical opinion that he died out of shock and haemorrhage dueto multiple injuries sustained by him. The cause of death put forthby the prosecution was never disputed by the appellant before thetrial Court, and hence without any impediment the factual positionthat he died out of homicidal violence has got to be recorded so. 9.In order to establish the charges levelled against theappellant, the prosecution before the trial Court had no directevidence to offer, but it relied upon the circumstantial evidence.The circumstances noticed by the trial Court and also by this Courton perusal and scrutiny of the materials could be stated as follows.First of all, immediately after the occurrence, it was P.W.2 who onseeing the severely injured Karadi @ Chinnasamy gave message toP.W.1, her brother's husband, who rushed to the spot. Both P.Ws.1and 2 enquired him, and at that time, the deceased told both of themthat he was beaten by the accused with wooden stick and also withiron pipe, as a result of which injuries were sustained. 10.Second circumstance was that immediately P.W.1 took him to theGovernment Mohan Kumaramangalam Medical College Hospital where he wasgiven treatment; but, within a short span of time, he died. At thisjuncture, it is pertinent to point out that P.Ws.1 and 2 areadmittedly strangers. Why they should come before a Court of law togive such evidence as if an oral dying declaration was given by himto them, no reason was brought forth by the appellant or noticed bythe Court. Hence the oral dying declaration has got to be acceptedfor the circumstance that they have sent the injured to the Hospitalimmediately after the occurrence, and he has narrated the incident.He has also further spoken to the fact that he took A-1 and waskeeping her for sometime, and on that day, he came there to take herback and at that time, the occurrence has taken place. Further P.W.1immediately went to the police station and has given Ex.P1, thereport, wherein he has completely narrated the entire episode. Under https://hcservices.ecourts.gov.in/hcservices/ the circumstances, the said dying declaration, in the consideredopinion of the Court, could be acted upon since the evidence ofP.Ws.1 and 2 inspired the confidence of the Court. 11.The third circumstance noticed by the Court is the extra-judicial confession given by the accused to P.W.6. P.W.6 was theChairman of Vikram Memorial Matriculation School, Mallur. Accordingto him, when he was in his residence, the accused appeared before himand narrated that they have beaten the deceased with wooden log andiron pipe and caused severe injuries, and thereafter, both of themwere produced along with his report in the letter paid marked asEx.P4. 12.Fourth circumstance was that pursuant to the arrest, A-1 hasgiven a confessional statement, pursuant to which M.Os.3 to 5 wereall recovered. They were all subjected to chemical analysis, andfurther, they were all found to have contained human blood. At thisjuncture, it is pertinent to point out that out of these threematerial objects, M.O.3 was the wooden log, and M.O.5 was the ironpipe with which the appellant attacked him and caused injuries, andthus, the recovery of these material objects pursuant to theconfessional statement given by A-1 would be pointing to the guilt ofA-1. 13.Now the contention put forth by the learned Counsel for theappellant is that it is highly doubtful whether Ex.P1, the report,has come into existence. It is true that there is discrepancy as tothe time and place and by whom it was written. But, in theconsidered opinion of the Court, Ex.P1 was only to the extent ofsetting the criminal law in motion because P.W.1 was not aneyewitness. Hence the attempt made by the appellant's side to attackthe case of the prosecution ended in vain. 14.The learned Counsel would further add that when the deceasedwas taken to the Government Hospital at 2.40 P.M. he was found to beconscious; but, nothing has been recorded by the Doctor in Ex.P16,the accident register copy. It is to be pointed out that within ashort span of 30 minutes, when he was taken to the casualty ward, heactually died, and thus, he could not have been in a position tospeak. Therefore, nothing has been recorded. When there issufficient evidence by way of circumstances which are narrated above,this contention put forth by the learned Counsel for the appellantdoes not carry merit whatsoever, and the same is to be rejected andaccordingly, rejected. Thus the prosecution by these evidence asnarrated above, has brought home the guilt of A-1 that it was he whoattacked the deceased with the wooden log and iron pipe, and as adirect consequence, death has ensued. 15.As far as the second line of argument put forth by the learnedCounsel for the appellant is concerned, this Court is able to seesufficient force. Admittedly, A-2 is the wife of A-1. They wereliving together peacefully. It was the deceased who intervened intheir marital life and took A-2 from A-1 and he was living with hernearly for one year. P.W.5 intervened, and she was brought back, andfor a period of 15 days prior to the occurrence, A-1 and A-2 wereliving peacefully. At this juncture, the deceased again came to the https://hcservices.ecourts.gov.in/hcservices/ place of A-1 and made an attempt to take her on the morning hours ofthe occurrence, and naturally any husband would become provoked. Dueto that provocation, A-1 has attacked him. It is further to bepointed out that at the time of the occurrence, he has used only astick and also an iron pipe which is being used in the kitchen. andthus, it cannot be stated that he used any deadly weapon. Further,all the injuries noticed in the postmortem certificate are simple innature, and they have brought forth the death. Under thecircumstances, this Court is unable to notice that A-1 had got anyintention or any premeditation to cause the death. It was thedeceased who kept A-2, the wife of A-1, for sometime, and even aftershe was brought home and living with A-1, again he came over thereand attempted to take her. Naturally due to the provocation, A-1 hasacted so. Under the circumstances, this Court is of the consideredopinion that it cannot be termed as murder, but culpable homicide notamounting to murder, and it would attract the penal provisions ofSec.304 (Part I) of IPC, and awarding seven years RigorousImprisonment would meet the ends of justice.16.Accordingly, the conviction and sentence imposed by the trialCourt on A-1 under Sec.302 of IPC are set aside, and instead, he isconvicted under Sec.304 (Part I) of IPC and directed to undergo sevenyears Rigorous Imprisonment. The sentence already undergone by him,shall be given set off. The fine imposed by the trial Court willhold good. The conviction and sentence imposed by the trial Court onA-1 under Sec.341 of IPC are confirmed.17.With the above modification in conviction and sentence, thiscriminal appeal is dismissed. It is reported that the appellant ison bail. Hence the Sessions Judge shall take steps to commit him toprison to undergo the remaining period of sentence.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv/To:1.The Judicial Magistrate No.I, Salem.2.-Do- Thro' The Chief Judicial Magistrate, Salem.3.The Superintendent, Central Prison, Coimbatore.4.The Principal Sessions Judge Salem. https://hcservices.ecourts.gov.in/hcservices/

5.The Inspector of Police Panamarathu Patti Police Station Crime No.15/2005 Salem District. 6.The Public Prosecutor High Court, Madras.7.The Section Officer, Criminal Section, High Court, Madras.1 CC To Mr.M.Devaraj, Advocate, SR NO.3350/09 CRL.A.No.356 of 2006kji(co)pmk/5.2.2009.