Marimuthu v. State by Inspector of Police, Pennagaram, Krishnagiri, Dharmapuri District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05.01.2008CORAM:THE HON'BLE MR. JUSTICE D. MURUGESANAND THE HON'BLE MR. JUSTICE V. PERIYA KARUPPIAHCrl.A.No.423 of 2006Marimuthu ..Appellant/Accusedvs.State byInspector of Police,Pennagaram,Krishnagiri, Dharmapuri District...Respondent/ComplainantAppeal filed under Section 374(2) Cr.P.C. against the judgmentof conviction and sentence passed in S.C.No.229 of 2004 on the fileof the Ist Additional District Judge, Dharmapuri at Krishnagiri,dated16.11.2005.For Appellant:Mr. P.N. Prakash for Mr.R.Sunil Kumar For Respondent:Mr. P. KumaresanAddl. Public ProsecutorJ U D G M E N T V. PERIYA KARUPPIAH, J.This appeal is directed against the judgment of the IstAdditional District Judge, Dharmapuri at Krishnagiri made inS.C.No.229 of 2004 dated 16.11.2005 convicting the accused/appellantunder Sections 447 and 302 I.P.C. The accused was sentenced toundergo life imprisonment and to pay a fine of Rs.5000/-, in defaultto undergo R.I. for one year for the offence under Section 302 I.P.C.and to pay a fine of Rs.500/-, in default to undergo R.I. for 15 daysfor the offence under Section 447 I.P.C.2.The case of the prosecution is as follows:(a)P.W.1 is the son of P.W.2 and Sambu, the deceased in thecase. P.W.3 is the brother of P.W.2. Both the families of the accusedand deceased belong to Aralkundi village.(b)One day prior to the date of occurrence i.e. on 21.1.2002, https://hcservices.ecourts.gov.in/hcservices/ the accused indulged in a quarrel with the deceased Sambu as thedeceased Sambu conveyed the conversation of the accused, with her,criticizing his son-in-law Anbazhangan regarding not taking care ofthe cow in his absence and that why should he offer milk to hischild, which led to a quarrel between the accused and his son-in-lawAnbazhagan also. (c)On 22.1.2002, at about 8.00 a.m. when the deceased Sambuwent to pluck 'Kollu' (Horsegram) from her field. At that time,P.W.1 and P.W.2 were also irrigating in their land. After some time,P.W.1 also left to pluck 'Kollu" by joining with his mother. When hewas proceeding towards Kollu field, P.W.1 heard the shouting of hismother "btl;uh';f btl;uh';f@/ Immediately, he ran towards the scene ofoccurrence, where he saw the accused was pulling down her mother,holding her hair and then cut on her back side of the neck withKoduval – M.O.1. and thereafter on her hands. When he cut on hercheek, the knife had broken. Before P.W.1 reached the spot, theaccused ran away with M.O.1. P.W.2 who was irrigating the land andP.W.3, who was also irrigating in his adjacent land also came to thespot on hearing the shouting of the deceased Sambu and also saw theaccused attacking the deceased Sambu. P.W.4, son of P.W.3, who was onthe top of a palmyrah tree also came to the spot on seeing theaccused holding the hair of the deceased inflicted a cut on her hand.They all found the said Sambu with injuries and struggling for herlife. Later she died there itself. (d)P.Ws.1 and 3 went to Ariyur Police Station, leaving thebody of the deceased and made a statement before the Sub Inspector ofPolice, P.W.10, who recorded the same into writing under Ex.P.1-Complaint and registered a case in Cr.No.29 of 2002 for the offencesunder Sections 447 and 302 I.P.C. Then he sent the printed F.I.R.-Ex.P.14 through P.W.9 to the Judicial Magistrate, Pennagaram and alsoforwarded the same to the Inspector of Police, P.W.11.(e)P.W.11, the Inspector of Police on receipt of theinformation through V.H.F. at 11.45 a.m. went to the Station at 1.15p.m. and took up the investigation of the case and left to the sceneof crime at 2.00 p.m. He caused the scene of crime and the dead bodyto be photographed through P.W.8. The photographs and the negativesare M.Os.12 and 13 series respectively. He prepared observationmahazar-Ex.P.11 and rough sketch-Ex.P.15 in the presence of P.W.5,Village Administrative Officer, who came there on information alonghis Assistant Ayyamuthu. He recovered blood stained earth-M.O.4. andsample earth -M.O.5 from the scene of occurrence under the cover ofMahazar Ex.P.3 in the presence of the same witnesses. Then he heldinquest over the body of the deceased from 3.00 p.m. to 6.00 p.m. andthe inquest report is Ex.P.16. He examined the witnesses and othersand recorded their statements. Thereafter, he sent the body forpostmortem with requisition Ex.P.6 through Head Constable, Madhu tothe Government Hospital Dharmapuri. https://hcservices.ecourts.gov.in/hcservices/ (f)On receipt of the requisition for postmortem, P.W.6, Dr.Govindaraj, Civil Assistant Surgeon attached to Dharmapuri GovernmentHospital conducted autopsy on the body of the deceased Sambu on23.1.2002 at 12.30 p.m. He found the following external injuries onthe body of deceased, which are incorporated in Ex.P.7-PostmortemCertificate:1)A incised wound left side of occipital region3x2x1cm3)An incised wound with smooth margin left side ofthe back of the neck 23x53 cm bone deep withvessels, muscles, nerves incised. I cervicalvertebra fractured.5)An incised wound just below the injury No.2 13 cmx 3 cm bone deep with vessels, nerves, musclescut with fracture of the left side of mandible.6)An incised wound 2 cm below the wound No.3 about8 cm x 3 cm bone deep with muscles nerves,vessels cut with fracture of the C5 vertebra.8)A stab wound over the left cheek entering intooral cavity, with 3 x 1 cm dimension.10)A stab wound over the centre of lower lip 3 x 1cm oral cavity.12)A stab wound below the wound No.6 on the leftcheek 3x1xbone deep.14)An incised wound left shoulder 6 cm x 2 x 1cm.16)An incised wound left side of back 3 x 1 x 1 cm.18)An incised wound left forearm 10x4cmx5cm witboth bones fracture.20)An incised wound left elbow 11cmx7cmxbone deepwith elbow joint opened with upper end of radiusfracture.(g)In furtherance of the investigation, P.W.11 searched forthe accused and on 23.1.2002 at 6.00 a.m., he arrested the accusednear Perumpalai Canal, Samakkal Village in the presence of the VAOand his Assistant. He recorded the statement of the accused and inpursuant to the admissible portion of the confession statement viz.,Ex.P.5, he recovered the broken weapon and its handle concealed in ashrub 1km near the scene of occurrence as produced by the accusedunder Mahazar Ex.P.4. Thereafter, he took the accused to the Stationand examined him. He recovered his blood stained inner wear viz.,baniyan-M.O.6 under Ex.P.17. Then he sent the accused for remand. He https://hcservices.ecourts.gov.in/hcservices/ also recovered personal apparels and the jewels of the deceased viz.,M.Os.8 to 15 as produced by the Constable, Madhu, under SpecialReport Ex.P.18. He examined the said constable and recorded hisstatement. He also examined the doctor and other witnesses andrecorded their statements. He gave requisition-Ex.P.8 to the Court tosend for the recovered objects for chemical examination, which wascarried out under the original of Ex.P.9 and Exs.P.10 and 11 are thechemical examination report and serologist's report. By examining allthe necessary witnesses and others and also gathering all relevantmaterials, P.W.11 concluded his investigation and filed a chargesheet against the accused under Sections 447 & 302 IPC.3.To prove the above case of the prosecution, P.Ws.1 to 11were examined and Exs.P.1 to P.18 and material objects 1 to 15 weremarked. On the defence side, no witnesses were examined nor anydocument was marked.4.When the accused was questioned under Section 313 Cr.P.C.,regarding the incriminating materials available against him, hedenied the same and submitted that a false case has been foistedagainst him.5.However, the learned Judge after evaluating the oral anddocumentary evidence came to the conclusion of holding the accusedguilty of the charges framed and he had convicted and sentenced theaccused as aforementioned.6.Heard the learned counsel for the appellant Mr.P.N. Prakashand the learned Additional Public Prosecutor, Mr. P.Kumaresanappearing for the State. 7.The learned counsel for the appellant Mr. P.N. Prakashwould submit in his argument that the eye witnesses viz., P.Ws.1 to 4are all closely related to the deceased woman and their evidence wereadduced only in order to incriminate the accused on the previousenmity had in between them and the murder of the deceased Sambu, themother of P.W.1, should have been caused by some other enemies of thedeceased family and the police had conveniently filed the caseagainst the accused. He would further submit in his argument thatthe motive alleged by the prosecution for commission of the offenceviz., that the deceased Sambu had informed the son in law of theaccused viz., Anbhazhagan about the comment made by the accusedagainst him that he will not even tie the cow in his absence in orderto avoid its wandering; but he would come for milk for his child andbecause of the said comment Anbazhagan stopped coming to the house ofthe accused to take milk for his child, is flimsy to constitute amotive for the commission of the murder. He would further submit thatthe family of the deceased were inimical towards various persons inrespect of some properties and some of their enemies in their familyitself would have caused the murder. He would further submit in hisargument that even assuming that the case of the prosecution against https://hcservices.ecourts.gov.in/hcservices/ the accused is true, the said injuries caused to the said Sambu wasonly due to the sudden provocation made by the deceased person in awordy quarrel and there is no intention for the accused to cause thedeath of the said Sambu and therefore, the lower Court ought to haveconvicted the accused only under Section 304-I I.P.C. while coming tothe conclusion that the accused was guilty of causing death of thesaid Sambu. Moreover, he would submit in his argument that the lowerCourt ought to have put separate and distinct questions regarding theincriminating evidence against the accused adduced by the prosecutionwitnesses so as to enable the accused to answer the questionnaireunder Section 313 Cr.P.C. But the lower Court had dumped all theevidence in a single question and had confused the accused in gettingthe answer. Therefore, the accused is entitled for acquittal on thatscore itself and the conviction and sentence may be set aside and theappeal may be allowed. 8.The learned Addl. Public Prosecutor viz., Mr.P.Kumaresanwould submit in his argument that the evidence of P.Ws.1 to 4 arecogent and the complaint has been immediately lodged by PW.1, the sonof the deceased at 11.00 a.m. and the investigating agency hasregistered the case, inspected the place of occurrence at 2.00 p.m.,seized MOs.4 & 5 from the place of occurrence at 2.30 pm. on the sameday, the papers have also been sent to the Court immediately and theaccused was arrested on the next day and on his confession, theweapon which he used to cause injuries on the said Sambu was seizedunder the mahazar. The said documents were also sent to the Courtimmediately and the cogent and consistent evidence given by PWs.1 to4 are reliable since they were supported by the medical evidence andscientific evidence also. He would further submit in his argumentthat the evidence of the prosecution were not put to the accused bythe lower Court in a single question. But the evidence of PW.1 alonewas put in a single question and the remaining evidence has beenseparately and distinctly placed before the accused in thequestionnaire under S.313 Cr.P.C and therefore, the argument advancedby the defence side is not sustainable. He would also submit in hisargument that the injuries caused by the accused on the body of thedeceased Sambu are all fatal made on the vital organs of the deceasedand therefore, it cannot be said that the accused had no intention tokill the deceased and he pleaded for the dismissal of the appeal. 9.The occurrence is said to have taken place on 22.1.2002 at8.00 a.m. at 'Kollukadu' belonging to the deceased Sambu and familyat Aralkundi, when the deceased was harvesting Kollu (Horsegram), theaccused had caused injuries on her neck, head, spinal cord, leftcheek, left shoulder and right buttocks, left elbow and thereby thesaid Sambu died on the spot and the accused had fled away from thescene of occurrence on seeing P.Ws.1 to 3 and one Sakkarai, thejunior paternal uncle of PW.1 with his wife approaching the place. 10.The motive for the said assault on the deceased Sambu issaid to be the enmity developed in between the accused and the https://hcservices.ecourts.gov.in/hcservices/ deceased Sambu, since the deceased Sambu had conveyed the commentmade by the accused against his son-in-law Anbhazhagan that he usedto come for milk for his child only, but he is not taking care of thecow at his house and thereupon the said Anbazhagan did not turn tothe house of the accused for milk. The accused had believed that thedeceased Sambu was the cause for the non coming of Anbazhagan and hisdaughter Lakshmi for milk to his grand child and on that belief heindulged in a wordy quarrel with Sambu on 21.1.2002 by 5.00 pmquestioning the information given by the deceased Sambu to his son inlaw and at that time, the accused had abused the deceased Sambu withfilthy words.11.P.W.1 is the son of the deceased Sambu. P.W.2 is thehusband of the deceased and P.W.3 is the elder brother of P.W.2.According to P.W.1 on 22.1.2002 at about 8.00 a.m. when he and hisfather P.W.2 were irrigating the land, his mother the deceased Sambuwas plucking the riped 'Kollu' in their field and in between thosetwo lands there was a paddy field belonging to them and he could seehis mother plucking 'Kollu', from the place where he was irrigatingthe field and he had told his father that he would join his mother inplucking the 'Kollu' and when he was proceeding towards her mother,the accused Marimuthu had come to 'Kollu' field and was attacking hismother Sambu with 'Koduval' and his mother Sambu shouted "btl;uh';fbtl;uh';f@ and P.W.1 could see that the accused held the hair of hismother and pulled her down and cut with 'Koduval' on her left hand,neck, left jaw and in the meantime, the 'Koduval' has broken and hissenior paternal uncle P.W.3 had also rushed to the place ofoccurrence and the accused Marimuthu had taken the weapon and fledaway from the scene of occurrence. When P.Ws.1 and 3 came and saw theinjured Sambu, she was fighting for her life. Thereafter, she diedthere itself and immediately, he had gone to Ariyur Police Stationand reported the matter to the police, who had registered the case.P.W.1 had identified the weapon as M.O.1.12.The evidence of P.W.2 viz., the husband of the deceasedSambu, who was also at the time of occurrence irrigating the fieldwith P.W.1 would also corroborate the evidence of P.W.1. Similarly,P.W.3, the elder brother of P.W.2 who was also irrigating the fieldat the time of occurrence had also spoken corroborating the evidenceof P.W.1. P.W.4 is the son of P.W.3. He was at the top of a PalmyrahTree when the occurrence had taken place. He had also spoken to theeffect as other witnesses had spoken about the occurrence and hewould also state that before he could get down from the tree andapproach the place of occurrence, the accused had committed theoffence and fled away from the scene of occurrence. 13.We have to see whether the evidence of P.Ws.1 to 4 could berelied upon or could the evidence be treated as interested testimonyas contended by the learned counsel for the appellant since the otherevidence regarding motive for the commission of offence are said to https://hcservices.ecourts.gov.in/hcservices/ be flimsy? 14.The accused was arrested on 23.1.2002 and was examined bythe police at 6.00 a.m. in the morning and P.W.5 and his Assistantwere asked to be present as witnesses for the examination of theaccused and at that time, the accused had given a confessionstatement and in the said statement, he had told the police that hewould hand over the weapon hidden by him in a shrub one k.m. awayfrom Aralkundhi and accordingly, he had taken the police as well asthe said witnesses to the said place, discovered the knife-M.O.1 fromthe shrub and handed over to the Police and P.W.5 and his assistantsigned both in the confession as well as the seizure mahazar preparedin respect of recovery of M.O.1. The recovery of the weapon wasspoken to and proved by P.W.5 which would further strengthen theevidence of P.Ws.1 to 4 that the accused had caused injuries on thedeceased Sambu and due to the said injuries, Sambu died on the spotitself. Moreover, the evidence of the doctor who did autopsy on thebody of the deceased Sambu as P.W.6 would show that she had sustained11 injuries which description of the injuries had also corroboratedby the oral testimony of P.W.1. 15.The delay in sending the F.I.R. to the Court i.e. only inthe evening on the date of occurrence was also promptly explained byP.W.9. It is evident from the prosecution witnesses that theinvestigating agency, immediately after the registration of the case,had inspected the place of occurrence by 2.00 p.m., seized theproperties there at 2.30 p.m., arrested the accused on the next dayitself, and recovered the weapon pursuant to the confession statementgiven by the accused. These circumstances would strongly go a longway to show that even though P.Ws.1 to 4 are related to the deceasedfamily, their evidence are reliable and it cannot be eschewed merelybecause they are related witnesses. Since P.Ws.1 to 4 were presentduring the time of occurrence and their evidence is alsocorroborative nature and there is nothing to show the presence of anyother independent witness at the scene of occurrence, the evidence ofP.Ws.1 to 4 are trustworthy. Therefore, the evidence adduced on theside of the prosecution viz., P.Ws.1 to 4 are reliable in nature. 16.A suspicion has been raised by the learned counsel for theappellant regarding preferring of the complaint by P.W.1 as P.W.1 inhis evidence has stated that he had got the Thirumal Bus from Poochurto go to Arihyur Police Station to prefer the complaint. WhereasP.W.3 would say that they took tempo from Poochur to Ariyur. Thisminor contradiction in the evidence of P.Ws.1 and 3 with regard tomode of transportation from the place of occurrence to the PoliceStation will not affect the case of the prosecution, in view of thefact that P.W.10, the S.I. of Police, who registered the case hadspoken clearly that P.W.1 had appeared before him, gave statement,the same was recorded as Ex.P.1, registered the case in Cr.No.29 of2002 and immediately forwarded to the Judicial Magistrate. Therefore,the suspicion raised by the counsel would no loner survive. https://hcservices.ecourts.gov.in/hcservices/

17.Moreover, the shirt worn by the accused at the time of theoccurrence was seized and produced as M.O.6. The said Baniyancontained blood stains and when it was sent to chemical examination,the blood stains were found to be of human blood and co-related withthe blood stains found in the clothes worn by the deceased Sambu.Apart from that the inquest report produced as Ex.P.16 was preparedby the investigating officer-P.W.11 on 22.1.2002 itself and it hadclearly depicted the enmity and the cause of death which would alsoincriminate the accused. The said inquest report had reached theCourt on 24.1.2002. Therefore, we cannot doubt about the involvementof the accused in the commission of the offence against the deceasedSambu as put forth by the prosecution. 18.So far as the motive and enmity are concerned, the evidenceof the prosecution would show that the accused had quarreled with thedeceased Sambu on 21.1.2002 by 5.00 p.m. questioning her proprietaryof communicating what the accused said about his son-in-law to hisson-in-law and the accused had also abused the deceased with filthylanguage. Further the evidence would show that the accused wasbelieving that the deceased Sambu was the cause for his son-in-lawand daughter not turning to his house for getting milk for theirchild. Apart from that, the evidence of the prosecution had alsoshown that there was already an enmity in grazing the cattle. Nodoubt, the accused is having the land and is living in the house putup in the land which is nearer to the land of the deceased family.The above evidence and the circumstances as spoken to by theprosecution witnesses are sufficient to attribute the motive allegedby the prosecution against the accused to cause the death of the saidSambu. 19.Now let us advert to the argument of the counsel for theappellant on the aspect of questioning done by the lower Court underSection 313 Cr.P.C. He would submit that when the accused wasquestioned on the incriminating circumstances available in theevidence of the prosecution against the accused, all the questionswere dumped into a single question and it was not put distinctly andseparately so as to enable the accused to explain the circumstancesand in the said circumstances, the accused is prejudiced and he isentitled for benefit of doubt. He would cite an authority reported in2004 AIR SCW 4764 (Naval Kishore Singh v. State of Bihar). Therelevant passage runs as runs:"We deprecate the practice of putting the entire evidenceagainst the accused put together in a single question andgiving an opportunity to explain the same, as the accusedmay not be in a position to give a rational andintelligent explanation. The trial Judge should havekept in mind the importance of giving an opportunity tothe accused to explain the adverse circumstances in theevidence and the Section 313 examination shall not be https://hcservices.ecourts.gov.in/hcservices/ carried out as an empty formality. It is only after theentire evidence is unfurled the accused would be in aposition to articulate his defence and to giveexplanation to the circumstances appearing in evidenceagainst him. Such an opportunity being given to theaccused is part of a fair trial and if it is done inslipshod manner, it may result in imperfect appreciationof evidence." 20.Now we have to see whether the questionnaire has beenprepared and put in a single question in respect of the entireevidence of the prosecution. On a perusal of the questions andanswers in the questionnaire, we could see that the evidence of P.W.1alone was put in Question No.1 and the evidence of other witnesseshave been separately and distinctly put forth in the questionnaire soas to enable the accused to answer the incriminating circumstances asspoken to by the prosecution witnesses. The entire evidence of theprosecution has not been clubbed into a single question. But theyhave been separately and distinctly put by the lower Court for thepurpose of answering the questionnaire. Therefore, the argumentadvanced by the learned counsel for the appellant cannot be accepted.21.Lastly, the learned counsel for the appellant hassubmitted that even if the injuries had been caused only by theaccused as alleged by the prosecution, the same has been caused onlyon the enragement on a wordy quarrel erupted between the accused andthe deceased Sambu. Therefore, the injuries inflicted would onlytantamount to an offence under Section 304-I IPC and it cannot betermed as a 'murder' warranting conviction under Section 302 IPC andpleaded for a lesser sentence. On a careful perusal of the injuriesspoken to by PW.1 coupled with the evidence of PW.6, we could seethat 11 injuries have been caused and the injuries were found to beon the vital parts of the deceased Sambu and therefore, the injuriescaused on the body of Sambu as caused by the accused with MO.1 cannotbe termed as an offence as specified under the exception to 'Murder',i.e. culpable homicide not amounting to murder. The motive, nature ofinjuries and the circumstances as spoken by the prosecution witnesseswould go a long way to show that the accused has got a premeditationto commit the murder of the deceased Sambu and in furtherance of thesame, he had committed the murder of the deceased Sambu andtherefore, the argument of the learned counsel for the appellant thatthe offence committed by the accused would only attract the offenceunder Section 304-I IPC cannot be sustained. 22.On a over all consideration of the evidence by us, wecould see that the prosecution has proved its case beyond allreasonable doubt that the accused had committed the murder of thedeceased Sambu and the conviction and sentence of the accused aspassed by the lower Court under Sections 447 and 302 I.P.C. areliable to be confirmed. https://hcservices.ecourts.gov.in/hcservices/

23.In the result, the appeal is dismissed confirming thejudgment dated 16.11.2005 convicting and sentencing the accused inS.C.No.229 of 2004 on the file of the Ist Additional District Judge,Dharmapuri at Krishnagiri for the offence under Sections 447 and 302I.P.C.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkvTo1.The Ist Additional District Judge,Dharmapuri at Krishnagiri.2.-do- thro' the District Judge, Dharmapuri.3.The Inspector of Police, Pennagaram, Krishnagiri,Dharmapuri District.4.The Superintendent, Central Jail, Vellore.5.The Public Prosecutor, High Court, Madras.6.The District Collector, Dharmapuri.7.The Director General of Police, Madras – 4.+1cc to Mr.R.Sunil Kumar, Advocate Sr 1427VRK (CO)km/31.1.CRL.A.NO.423 OF 2006