Erudhayaraj @ Mackacholam v. The Inspector of Police H-1 Washermenpet Police Station Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 31-10-2008CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE S.RAJESWARANCRL.A.No.684 of 2007Erudhayaraj @ Mackacholam .. Appellant/AccusedvsState by:The Inspector of PoliceH-1 Washermenpet Police StationChennai .. Respondent/Complainant(Cr.No.843/2006)Criminal appeal preferred under Sec.374(2) of Cr.P.C. against thejudgment of the Additional District and Sessions Judge/Fast Track CourtII, Chennai, in S.C.No.42 of 2007 dated 11.7.2007.For Appellant: Mr.T.K.SampathFor Respondent: Mr.R.Balasubramanian Additional Public ProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges a judgment of the Additional SessionsDivision, Fast Track Court No.II, Madras, in S.C.No.42 of 2007 wherebythe sole accused/appellant stood charged, tried and found guilty as perthe charge of murder and awarded life imprisonment along with a fine ofRs.10,000/- and default sentence.2.The short facts necessary for the disposal of this appeal can bestated thus:(a) P.W.1 is a resident of Katpada Main Road, Washermenpet. P.W.2is the son of P.W.3, and they are also residents of adjacent houses.The accused/appellant is also a neighbour to P.W.3, and P.W.4 is theelder brother of the deceased Nagalingam. The deceased was also stayingalong with his relatives namely P.Ws.1 to 3. On the date of occurrencei.e., 6.11.2006, at about 4.00 P.M., the deceased came to the house ofP.W.1 and was asking for money from his brother Velavan who is thehusband of P.W.3. At that time, P.W.2 came out of the house. Theaccused also came out and asked the deceased why he was always creatingproblems. In turn, the deceased replied that it was a family affair, https://hcservices.ecourts.gov.in/hcservices/ and he should not interfere. On hearing this, the accused uttered "Iknow how to deal with this".Then, he took a knife and stabbed Nagalingamon the left chest. This was actually witnessed by P.Ws.1 to 4. Whenthere was hue and cry, the accused left the place of occurrence.Immediately, P.Ws.1 to 4 and others took the victim to the GovernmentStanley Hospital, where P.W.13 was the Doctor in charge. It was he whoadmitted the victim at 4.10 P.M., and the statement of the victim wasrecorded by him. The same is found in the accident register copy markedas Ex.P13. (b) On receipt of the information at 5.00 P.M., P.W.12, the SubInspector of Police, attached to H1 Washermenpet Police Station, went tothe hospital and took the statement of the deceased. The signature ofthe deceased in the complaint is marked as Ex.P2. On the strength ofthe said complaint, P.W.12 registered a case in Crime No.843 of 2006under Sections 341, 307 and 506(2) of IPC. The printed FIR, Ex.P12, wasdespatched to the Court. The further treatment was given by P.W.14, theDoctor, who conducted operation on Nagalingam.(c) On receipt of the copy of the FIR, P.W.17, the Inspector ofPolice, H1 Washermenpet Police Station, took up investigation, proceededto the place of occurrence, made an inspection and prepared anobservation mahazar, Ex.P2, and a rough sketch, Ex.P3. He alsorecovered the material objects from the place of occurrence and went tothe Government Stanley Hospital. He recorded the statement of thedeceased which was also placed before the Court. (d) On receipt of an intimation, P.W.8, the XIII MetropolitanMagistrate, Madras, proceeded to the hospital and the deceasedNagalingam was identified; but, he could not record his statement sincehe was unconscious. The report given by him, is marked as Ex.P7. (e) While the deceased was under treatment, he died on 7.11.2006.Following the same, the case was altered to Sec.302 of I.P.C. Theexpress report, Ex.P19, was despatched to the Court. Then, theInvestigating Officer conducted inquest on the dead body in the presenceof witnesses and panchayatdars and prepared an inquest report, Ex.P20.He also gave a requisition to the hospital authorities for conduct ofautopsy.(f) P.W.15, the Assistant Professor, Department of ForensicMedicine, Government Stanley Medical College, conducted autopsy on thedead body of Nagalingam and issued Ex.P15, the postmortem certificate,with his opinion that the deceased would appear to have died of shockand haemorrhage due to stab injury on the left side of the chest.(g) Pending the investigation, the Investigator came to know thatthe accused surrendered before the Judicial Magistrate, Thiruvottriyur.Then, the police custody was asked for, and as per the request, it wasordered. He was taken to police custody on 10.11.2006. At the time ofinterrogation, the accused gave a confessional statement which wasrecorded in the presence of two witnesses. Pursuant to the confessionalstatement, he produced M.O.1, knife, which was recovered under amahazar, Ex.P7. He also produced bloodstained shirt and also a lungi https://hcservices.ecourts.gov.in/hcservices/ which were recovered under another mahazar. He was sent for judicialremand again. (h) All the material objects recovered from the place of occurrenceand from the dead body, and also the material objects which wererecovered from the accused on production, were subjected to chemicalanalysis by the Forensic Sciences Department, which resulted in tworeports namely Ex.P16, the Chemical Analyst's report, and Ex.P17, theSerologist's report. On completion of investigation, the Investigatorfiled the final report.3.The case was committed to Court of Session, and necessary chargewas framed. In order to substantiate the charge, the prosecutionexamined 17 witnesses and also relied on 21 exhibits and 5 materialobjects. On completion of the evidence on the side of the prosecution,the accused was questioned under Sec.313 of Cr.P.C. as to theincriminating circumstances found in the evidence of the prosecutionwitnesses which he flatly denied as false. No defence witness wasexamined. The Court below heard the arguments advanced, scrutinised thematerials available and took the view that the prosecution has provedthe case beyond reasonable doubt and hence found him guilty as per thecharge of murder and awarded life imprisonment which is the subjectmatter of challenge before this Court.4.Advancing arguments on behalf of the appellant, the learnedCounsel Mr.T.K.Sampath made the following submissions:(i) According to the prosecution, the occurrence has taken place on6.11.2006 at 4.00 P.M., and P.Ws.1 to 4 were eyewitnesses. Even as perthe prosecution case, they were all closely related, and thus, they wereall interested witnesses. (ii) From the evidence of P.Ws.1 to 4, it would be quite clear thatthe family of the accused and the family of the prosecution witnesseswere not in talking terms for a longtime, and they were on inimicalterms. Even as per the evidence available, it would be quite evidentthat the deceased was in a drunken mood and used to be creatingproblems, and he had got number of enemies. Thus, someone would havemurdered him. In order to take revenge, all the prosecution witnesseshave come forward to give a false complaint against the accused. (iii) According to the evidence of P.W.1, P.W.2 has already given acomplaint to the police; but, that complaint has been suppressed. Hadthat complaint been produced before the Court, the truth would have comeout, and hence it is a fit case where adverse inference has got to bedrawn.5.Added further the learned Counsel that in the instant case,according to the evidence of P.W.8, the XIII Metropolitan Magistrate, heproceeded to the hospital at about 11.40 P.M., and he could not recordthe dying declaration of the deceased Nagalingam since he wasunconscious; but, according to P.W.13, the Doctor, the deceasedNagalingam was first seen by him at 4.10 P.M.; that it could be wellseen that Nagalingam could not have taken liquor in the hospital; thatthe occurrence should have taken place at 4.00 P.M. And he should havetaken liquor earlier to the occurrence; that if to be so, when theMetropolitan Magistrate has seen him at about 11.40 P.M., the liquor https://hcservices.ecourts.gov.in/hcservices/ should have become subsided; but, the Magistrate has found himunconscious; that it would be quite clear that even before 4.10 P.M.,when he was seen by P.W.13, the Doctor, he would have been unconscious;that under the circumstances, the statement of the Doctor as found inEx.P13, the accident register copy, as if he gave the statement to himand the case of the prosecution that it was he who gave the complaint toP.W.12, the Sub Inspector of Police, H1 Washermenpet Police Station, andthereafter, to the Inspector of Police, P.W.17, were all nothing butfalse introduction, and they have got to be rejected.6.The learned Counsel would further submit that the evidence putforth by the prosecution that he was taken to police custody, and at thetime of interrogation he came forward with a confessional statement, andit was also recorded in the presence of witnesses following which M.O.1,knife, has also been recovered from him were nothing but introduction inorder to suit the prosecution case; that it is not only a case where theprosecution lacked evidence, but also it is a case where the prosecutionhad no evidence worth-mentioning to offer; that the lower Court has notconsidered any one of the factual positions, but has found him guilty,and hence he has got to be acquitted by this Court.7.Added further the learned Counsel in the second line of hisargument that in the instant case, even as per the Doctor's evidence, hewas in a drunken mood; that the evidence of P.W.2 would clearly indicatethat there was a wordy altercation; that the same gave him suddenprovocation in which he has acted so, and hence, it was neitherintentional nor premeditated; that it was only by the circumstanceswhich provoked him by the deceased; that it would not attract the penalprovision of murder, and this legal position has got to be considered bythe Court if the Court takes the view that it was the accused whoactually stabbed him accepting the factual position as put forth by theprosecution.8.The Court heard the learned Additional Public Prosecutor on allthe above contentions and paid its anxious consideration on thesubmissions made.9.It is not in controversy that one Nagalingam the brother ofP.W.4, following an incident that took place on 6.11.2006 at 4.00 P.M.,in front of his house, was taken to the Government Stanley Hospital, anddespite treatment, he died on 7.11.2006. Following the inquest made byP.W.17, the Inspector of Police, the dead body was subjected topostmortem by P.W.15, the Doctor, who has given his categorical opinionthat Nagalingam died out of shock and haemorrhage due to the injuriessustained on the chest and also corresponding internal injuries. Thefact that Nagalingam died out of homicidal violence was never disputedby the appellant/accused at any stage of the proceedings. Hence withoutany impediment it could be recorded so. 10.In order to substantiate the fact that it was the accused whostabbed the deceased on the chest and as a consequence, he died, theprosecution examined four witnesses P.Ws.1 to 4. The first comment madeby the learned Counsel for the appellant that P.Ws.1 to 4 were closelyrelated, and hence they have falsely implicated the accused has got to https://hcservices.ecourts.gov.in/hcservices/ be discountenanced. It is well settled proposition of law that even ifthe eyewitnesses happened to be related witnesses, before acceptingtheir evidence, the Court must exercise the test of careful scrutiny,and if the Court is satisfied, it can take the evidence and act upon thesame. In the instant case, the evidence of P.Ws.1 to 4 even if thecareful scrutiny test is applied, has inspired the confidence of theCourt. All the four witnesses have spoken to the effect that they wereall available at the place of occurrence; that it was the deceased whocame to his brother Velavan and demanded money; that when they weretalking to each other, it was the accused who intervened; that there wasa wordy altercation between the deceased and the accused; and that theaccused stabbed him on the chest and fled away from the place ofoccurrence. As far as this factual position is concerned, despite fullcross-examination of P.Ws.1 to 4, they have all spoken in one voice, andtheir evidence remained unshaken. Their evidence has got to be actedupon in the considered opinion of the Court. 11.The next piece of evidence available for the prosecution is thatof the evidence of P.W.13, the Doctor, attached to the GovernmentStanley Hospital. According to the Doctor, the deceased Nagalingam wastaken to the hospital at 4.10 P.M. i.e., within 10 minutes from the timeof occurrence, and he was examined by him. According to the Doctor, hegave a statement that he was stabbed by a known person at 4.00 P.M. inhis residence. Now, the contention put forth by the learned Counsel forthe appellant that at about 11.40 P.M., P.W.8, the XIII MetropolitanMagistrate, went to the hospital; that he could not record the dyingdeclaration since he was unconscious; that if this fact is taken intoconsideration, at about 4.10 P.M., he should have been certainlyunconscious, and hence he could not have given any statement to theDoctor, P.W.13, though attractive at the first instance, it does notstand scrutiny for the simple reason that P.W.13 is the Doctor attachedto the Government Stanley Hospital. When he has been cross-examined tothe effect that whether Nagalingam was unconscious, he has categoricallydenied the same. The Doctor would state that it was Nagalingam who gavethe statement, and he has also recorded the same. 12.The contention put forth by the learned Counsel for theappellant has got to be rejected for two reasons. It is true that theXIII Metropolitan Magistrate has gone to the hospital at about 11.40P.M. i.e., 7 hours after the occurrence. It is not the case whereunconsciousness would have been caused by the liquor, butunconsciousness should have also been caused by the vigor of theinjuries actually sustained by the deceased. Apart from that, it cannotbe a reason to accept that a person who is in intoxication mood cannotspeak. In the instant case, there was a wordy altercation just 10 or 15minutes prior to the medical examination by P.W.13 on Nagalingam. Thiswordy altercation between the deceased and the accused is spoken to byP.Ws.1 to 4. All would go to show that the deceased was so conscious togive such a statement. According to P.W.13, the Doctor, he has recordedthe same in Ex.P13, accident register copy, as could be seen by theCourt. 13.Added circumstance is the statement given by Nagalingam whichactually formed basis for the registration of the case by P.W.12, the https://hcservices.ecourts.gov.in/hcservices/ Sub Inspector of Police, in Crime No.843 of 2006 originally underSec.307 of I.P.C. Apart from that, the Inspector of Police had goneover there and recorded the statement, and only on his death, the casehas been converted to Sec.302 of IPC.Now, at this juncture, thecontention put forth by the learned Counsel for the appellant thatoriginally there was a report given by P.W.2; that the same has alsobeen suppressed; and that the non-production would be fatal to theprosecution case cannot be accepted. According to the evidence of P.W.1,a report was given by P.W.2. But from the evidence of P.W.2, it wouldbe quite clear that a suggestion was made to P.W.2, and P.W.2 hascategorically denied the suggestion that he gave a report. Merely onthe evidence of P.W.1 as if P.W.2 gave a report, the Court cannot act soonce that fact has been denied by P.W.2. 14.Apart from the above, the other contention that there wasactually enmity between the parties, and therefore such a situation hasarisen that they have implicated falsely the accused cannot be acceptedbecause P.Ws.1 to 4 have spoken the truth that there was a wordyaltercation between the deceased who was in a drunken mood, and theaccused. All put together would go to show that the prosecution hasbrought forth the guilt of the accused. 15.Yet another circumstance in favour of the prosecution was therecovery of the weapon of crime which has also been subjected tochemical analysis, and the scientific evidence was also in favour of theprosecution. All these contentions now put forth by the learned Counselfor the appellant and narrated above, did not carry any merit. It canbe well stated that the prosecution has proved that it was the accusedwho stabbed Nagalingam at the time and place of occurrence, and as aconsequence he died. Hence it has got to be seen proved.16.As far as the second line of argument made by the learnedCounsel for the appellant is concerned, this Court is able to seesufficient force. It is true that the deceased came there in a drunkenmood and was demanding money. It is also an admitted position that theaccused is a neighbour who came out of the house, and he questioned thedeceased why he was creating problems then and there. It is quitenatural. At that time, there was a wordy altercation between thedeceased and the accused, and in the course of the same transaction, theaccused had taken the knife and stabbed him. Thus it would be quiteclear that it is neither premeditated nor intentional, but by suddenquarrel and provocation he had acted so. This Court is of the view thatit is a case where the act of the accused would not attract the penalprovision of murder, but it would be culpable homicide not amounting tomurder, and he has to be found guilty under Sec.304 (Part II) of I.P.C.and awarding punishment of five years Rigorous Imprisonment would meetthe ends of justice. 17.Accordingly, the conviction and sentence of life imprisonmentawarded by the lower Court under Sec.302 of IPC are set aside, andinstead, he is convicted under Sec.304 (Part II) of IPC and is directedto suffer five years Rigorous Imprisonment. The fine and the defaultsentence imposed by the trial Court, will hold good. The sentencealready undergone by him, shall be given set off. https://hcservices.ecourts.gov.in/hcservices/

18.In the result, with the above modification in conviction andsentence, this criminal appeal is dismissed.Sd/-Asst. Registrar/true copy/Sub Asst. Registrarnsv/To.1.The Additional District and Session Judge cum Fast Track Court No.II,Chennai.2.-thro'-The Principal Sessions Judge, Chennai.3.The Superintendent, Central Prison, Puzhal, Chennai.4.The District Collector, Chennai.5.The Director General of Police, Mylapore, Chennai-4.6.The Inspector of Police, H1,Washermenpet Police Station, Chennai.7.The Public Prosecutor,High Court, Madras.CRL.A.No.684 of 2007rsm(co)em/11.11.08