Easwaran @ Easwaramoorthy v. State

BAIL SLIPThe Appellant/Accused herein namely Easwaran @ Easwaramoorthy,was directed to be released on bail as per order of this Court dated22.01.2007 and made in Crl.M.P.No.2/2007 in Crl.A.No.759 of 2006.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 6-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.No.759 of 2006Easwaran @ Easwaramoorthy ..Appellant/AccusedvsState rep. ByInspector of PoliceNambiyur Police StationErode District(Crime No.158/2005) ..Respondent/ComplainantCriminal Appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Principal SessionsJudge, Erode Division at Erode, made in S.C.No.180 of 2005 dated6.7.2006.For Appellant: Mr.S.N.Arunkumar for Mr.C.RamkumarFor Respondent: Mr.A.Saravanan Government Advocate(Criminal Side)JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Principal SessionsDivision, Erode, made in S.C.No.180 of 2005 whereby theappellant/sole accused stood charged under Sec.302 of IPC, tried,found guilty of murder and awarded life imprisonment with a fine ofRs.10000/- and default sentence. https://hcservices.ecourts.gov.in/hcservices/

2.The short facts necessary for the disposal of this appeal canbe stated as follows:(a) P.W.1 is the son of the deceased Vandikkarar @ Periyasamy.The deceased was doing jaggery business at Ganesapuram. The accused,a resident of the same place, was also carrying on the same business.P.W.5 Sigamani was also doing the same business. Originally, theaccused was doing profitable business. Thereafter he sustained aloss. He was under the impression that the deceased was responsiblefor the same since he directed all the customers to go to the shop ofSigamani, P.W.5, and thus, the accused developed enmity towards thedeceased. (b) On 26.6.2005, as usual the deceased after having the dinner,was proceeding to his shop at about 8.45 P.M. Since he forgot totake the outer key of the shop, P.W.1 took the same and followed hisfather. When the deceased was just crossing the house of the accusedsituated on the way, the accused came out and was questioning whetherhe directed the customers to go to the shop of Sigamani. It wasreplied by him not so. Immediately, the accused got inside thehouse, brought M.O.1, sickle, and attacked him twice. This waswitnessed by P.W.2 and one Velliangiri, not examined. (c) P.W.1 immediately informed to the villagers. All gatheredthere. Then he proceeded to the respondent police station at about4.30 A.M. At that time, P.W.11, the Sub Inspector of Police was onduty. P.W.1 gave Ex.P1 report to him, on the strength of which acase came to be registered in Crime No.158 of 2005 under Sec.302 IPC.The printed FIR Ex.P16, was despatched to the Court. (d) P.W.12, the Inspector of Police of that circle, on receiptof the copy of the FIR, took up investigation, proceeded to the spot,made an inspection and prepared an observation mahazar, Ex.P2 and arough sketch, Ex.P17. Then he conducted inquest on the dead body inthe presence of witnesses and panchayatdars and prepared Ex.P18, theinquest report. He recovered bloodstained earth and sample earthfrom the place of occurrence under a cover of mahazar. The dead bodywas sent to the Government Hospital along with a requisition for thepurpose of autopsy.(e) P.W.6, the Assistant Medical Officer, attached to theGovernment Hospital, Gobichettipalayam, on receipt of the saidrequisition, conducted autopsy on the dead body of Vandikarar @Periyasamy and gave his opinion that the deceased would appear tohave died of shock and haemorrhage due to injury at neck and upperback. He gave a postmortem certificate, Ex.P9.(f) Pending investigation, the accused was arrested on 27.6.2005at 2130 hours. He gave a confessional statement. The admissible partis marked as Ex.P4, pursuant to which he produced M.O.1, sickle, https://hcservices.ecourts.gov.in/hcservices/ M.O.4, shirt, and M.O.5, lungi, all bloodstained. They were allrecovered under a cover of mahazar. He was sent for judicial remand.All the material objects recovered from the place of occurrence andfrom the dead body and also the material objects recovered from theaccused on production, were subjected to chemical analysis by theForensic Sciences Department on a requisition given by theInvestigating Officer through the concerned Judicial Magistrate'sCourt, which brought forth Ex.P12, the chemical analyst's report, andExs.P13 an P14 the serologist's report. On completion of theinvestigation, the Investigator filed the final report.3.The case was committed to Court of Session, and necessarycharge was framed. In order to substantiate the charge, theprosecution examined 12 witnesses and relied on 18 exhibits and 11material objects. On completion of the evidence on the side of theprosecution, the accused was questioned under Sec.313 of Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses which he flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved the case beyondreasonable doubt and hence entered a judgment of conviction andsentence which is the subject matter of challenge before this Court.4.Advancing arguments on behalf of the appellant, the learnedCounsel made the following submissions:(a) According to the prosecution, the occurrence has taken placeon 26.6.2005 at about 9.00 P.M. The prosecution marched P.Ws.1 and 2as eyewitnesses. Apart from them, one Velliangiri, according to theInvestigator, has also witnessed the occurrence. But, he was notexamined for the reasons known to the prosecution.(b) As far as P.W.1 was concerned, he is the son of thedeceased. P.W.2 is the brother-in-law of P.W.1. Thus they are allnot only close relatives, but also interested. In suchcircumstances, their evidence if scrutinised carefully, it does notstand the test, and hence their evidence should have been rejected.(c) It is doubtful whether Ex.P1 could have come into existenceas put forth by the prosecution. According to P.W.11, the SubInspector of Police, P.W.1 came to the police station and gave Ex.P1,written report, on the strength of which a case came to beregistered. But, the xerox copy of Ex.P1 report, was found in thecase bundle. When it was enquired, the Sub Inspector had noexplanation to offer. It would be quite clear that Ex.P1 reportcould have been prepared at the police station itself and that toothrough a constable. If to be so, the evidence of P.W.11 that P.W.1gave a written report would go to show that Ex.P1 could not have comeinto existence as put forth by the prosecution. https://hcservices.ecourts.gov.in/hcservices/ (d) There are lot of discrepancies which are major in nature,between the evidence of P.W.1 and P.W.2. Further these discrepancieswould clearly indicate that both the witnesses could not have seenthe occurrence at all.(e) The medical evidence did not support the case of theprosecution.(f) The alleged arrest, confession and recovery are nothing butsubsequent development in order to strengthen the prosecution case.(g) Even the scientific evidence produced through the chemicalanalyst's report and serologist's reports did not support the case ofthe prosecution. According to the Investigator, M.O.1, sickle, wasrecovered from the accused. But, the blood group did not tally asper the report along with the other material objects.(h) All the above would go to show that the prosecution has notproved the case beyond reasonable doubt.5.The learned Counsel in the second line of argument wouldadvance that as per the evidence of P.Ws.1 and 2, both the accusedand the deceased were doing jaggery business, and the accused wasfacing loss in his business, and he was under the impression whetherright or wrong it was due to the direction given by the deceased tothe customers to go to the shop of P.W.5; that the evidence would goto show that on the date of occurrence, when the accused was standingin front of his house, the deceased was just proceeding, and therewas a wordy altercation, and immediately, he went inside the house,took a sickle and then attacked him; that it would indicate that atthe time of the occurrence the accused was not armed with any weapon;but only after the wordy quarrel, he got inside and took sickle out;that under the circumstances, there was a sudden quarrel precedingthe occurrence; that there was no premeditation or intention for theaccused to act so, and under the circumstances, it has got to beconsidered by this Court.6.The Court heard the learned Government Advocate (CriminalSide) on the above contentions and paid its anxious consideration onthe submissions made.7.It is not in controversy that one Vandikkarar @ Periyasamy,the father of P.W.1, was done to death in an incident that had takenplace at about 9.00 P.M. on 26.6.2005. After the registration of thecase by P.W.11, the Sub Inspector of Police, the copy of the FIR wasreceived by P.W.12, the Inspector of Police, and at the scene ofoccurrence, he conducted inquest and prepared the inquest report,Ex.P18. Following the same, the dead body was subjected topostmortem by P.W.6, the Doctor, on a requisition made by theInvestigator. He gave his categorical opinion as a witness before the https://hcservices.ecourts.gov.in/hcservices/ Court and through his postmortem certificate, Ex.P9, that thedeceased died of shock and haemorrhage due to injury at neck andupper back. This fact that Vandikkarar @ Periyasamy died out ofhomicidal violence was never disputed by the appellant before thetrial Court, and hence without any impediment it could be recordedso. 8.In order to substantiate that it was the accused who stabbedthe deceased to death, the prosecution marched two witnesses. It istrue that P.W.1 is the son of the deceased and P.W.2 is the brother-in-law of P.W.1. This Court is also mindful of the caution made bythe settled principles of law and also by the Supreme Court that in agiven case where the relations happened to be the eyewitnesses, theCourt before accepting their evidence, must exercise the test ofcareful scrutiny. Even after this test is applied, this Court isthoroughly satisfied that the evidence of P.Ws.1 and 2 has got to beaccepted. According to P.W.1, it is the usual practice of his fatherto go to the shop after taking dinner and sleep there, and on thedate of occurrence namely 26.6.2005, when his father left to theshop, he forgot to take the outer key, and on seeing this, he (P.W.1)took the key and followed him. According to P.W.1, when the deceasedwas just crossing the house of the accused, it was the accused whoasked him whether it was he who directed the customers to go to theshop of P.W.5, and it was replied in the negative by the deceased,and immediately, following the wordy altercation, the accused gotinside his house, took M.O.1 sickle and attacked his father, and as aresult, he died at the spot. As far as the occurrence spot isconcerned, P.W.2 has spoken to the same. The evidence of P.W.2 stoodas a piece of corroboration to the evidence of P.W.1. The oculartestimony projected by the prosecution through P.Ws.1 and 2 inrespect of the occurrence, stood fully corroborated by the medicalevidence projected through the evidence of the postmortem Doctor,P.W.6, and also the postmortem certificate, Ex.P9 issued by him. 9.Yet another circumstance against the appellant/accused was therecovery of the weapon of crime, M.O.1, sickle, and also the clothesM.O.4, shirt, which was worn by the accused at the time ofoccurrence. All the material objects recovered from the place ofoccurrence and from the dead body of the deceased and also M.Os.1 and4 were all subjected to chemical analysis. Accordingly, reports werereceived. A perusal of the serologist's report would indicate thatin respect of the shirt worn by the accused, and the clothes worn bythe deceased at the time of occurrence, blood group was found to betallying, and thus the scientific evidence was also in favour of theprosecution. All would go to show that the prosecution has broughthome the guilt of the accused.10.Now, as regards the contentions put forth by the learnedCounsel for the appellant, this Court is unable to see any merit inthe same. As far as the FIR was concerned, the case was registered https://hcservices.ecourts.gov.in/hcservices/ on the strength of Ex.P1 report. P.W.1 has been examined, and he hasalso spoken to the fact that it was he who gave Ex.P1 report. Ex.P1report was received by P.W.11, the Sub Inspector of Police. Thegiver of the complaint and the person who received the same both havebeen examined, and on the strength of the said document, a case cameto be registered. Thus it leaves no doubt in the mind of the Court. 11.As far as other contentions are concerned, they do not carryany merit whatsoever. It is true that the blood group found in thesickle was not actually tallying with the blood group on the clotheswhich were worn by the deceased at the time of occurrence. But, asnoticed above, the blood group found in the clothes worn by thedeceased and that of the accused was found to be tallying, and thus,the contentions put forth by the learned Counsel do not carry merit,and hence they are liable to be rejected and accordingly rejected.12.As far as the second line of argument is concerned, thisCourt is able to see force in the same. Even according to theprosecution and also according to the eyewitnesses, both the accusedand the deceased were doing jaggery business and P.W.5 was also doingthe same business, and the accused was doing the business profitably,and later, he sustained loss, and he was under the impression that itwas the deceased who directed the customers to go to the shop ofP.W.5, and on the day when the deceased was proceeding to his shop,he crossed the house of the accused, and at that time, the accusedwas actually standing in front of his house, and he questioned thedeceased whether it was he who directed the customers to go toP.W.5's shop, and when it was replied in negative, there was actuallya wordy altercation. Following the sudden quarrel, the accused gotinto the house, took M.O.1 sickle, and attacked him twice and causedhis death. Thus it wold be quite clear that there was no intentionon the part of the accused nor was there any premeditation, but itwas due to the sudden quarrel that took place at the spot. Under thecircumstances, this Court is of the considered opinion that it is nota case where the Court could find the appellant/accused guilty underSec.302 IPC, but only under Sec.304 (Part I) of IPC, and awarding of7 years Rigorous Imprisonment would meet the ends of justice.13.Accordingly, the conviction and sentence of life imprisonmentimposed by the trial Court under Sec.302 IPC are set aside, andinstead, the appellant/accused is convicted under Sec.304 (Part I) ofIPC and is directed to suffer 7 years Rigorous Imprisonment. Thesentence already undergone by him shall be given set off. The fineimposed by the trial Court will hold good.14.With the above modification in conviction and sentence, thiscriminal appeal is dismissed. It is reported that the appellant is on https://hcservices.ecourts.gov.in/hcservices/ 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.RegistrarnsvTo1. The Principal Sessions Judge Erode Division at Erode.2. The Judicial Magistrate No.II, Gobichettipalayam.3. -do- Through The Chief Judicial Magistrate, Erode.4. The Director General of Police, Chennai.5. The District Collector, Coimbatore.6. The Inspector of Police Nambiyur Police Station Erode District 7. The Superintendent, Central Prison, Coimbatore.8. The Public Prosecutor High Court, Madras.Copy to:The Section Officer,Criminal Section,High Court, Madras.+ 1 c.c. to Mr. C. Ramkumar, Advocate. S.R.No.28958. CRL.A.No.759 of 2006PUR (CO)GSK 17.07.2009.