Madras High Court
Pazhani vs State on 19 December, 2019
Author: R.Subbiah
Bench: R.Subbiah, R.Pongiappan
Crl.A.No.142 of 2018
IN THE HIGH COURT OF JUDICIATURE AT MADRAS
DATED : 19.12.2019
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A.No.142 of 2018
Pazhani .. Appellant
versus
State
Represented by
The Inspector of Police,
Mathur Police Station,
Krishnagiri District. .. Respondent
Criminal Appeal filed under Section 374(2) of the Code of Criminal
Procedure, against the conviction and sentence passed by the learned Principal
Sessions Judge, Krishnagiri in S.C.No.60 of 2017 dated 23.11.2017.
For Appellant : Mr.M.G.Udayashankar
For Respondent : Ms.M.Prabhavathi
Additional Public Prosecutor
JUDGMENT
[Judgment of this Court was made by R.PONGIAPPAN,J.] The present Appeal has been filed by the appellant/accused against the judgment passed in S.C.No.60 of 2007 dated 23.11.2017 on the file of the learned Principal Sessions Judge, Krishnagiri.
2. The appellant is the sole accused in the above said case. The appellant stood charged for the alleged offences under Sections 302 and 294[b] of IPC. The accused denied all the charges and opted for trial. Therefore, he was put http://www.judis.nic.in 1/15 Crl.A.No.142 of 2018 on trial on the charges. After full-fledged trial, the learned Principal Sessions Judge, Krishnagiri, found the appellant/accused guilty of offences under Sections 302 and 294[b] of IPC. Accordingly, the appellant/accused was convicted and sentenced to undergo Life Imprisonment and he was directed to pay a fine of Rs.3,000/-, in default to undergo 6 months Rigorous Imprisonment for the offence under Section 302 of IPC. He was also convicted and sentenced to undergo 3 months Rigorous Imprisonment for the offence under Section 294[b] of IPC. The trial Court ordered the sentences to run concurrently. Challenging the conviction and sentence, the accused is before this Court with the present Criminal Appeal.
3. The relevant facts of the case which gave rise to the filing of this appeal are necessary to be recapitulated for the disposal of this appeal:-
(i) P.W.1 [Lavanya] is the wife of the deceased Karthick, P.W.2 [Subbamma] is the mother of the deceased and they are residing in Savulur Village, Nadupattu Post, Krishnagiri District. The accused [Pazhani] is also a resident of the same Village, where the deceased and P.Ws.1 and 2 were residing.
(ii) On 11.07.2016, at about 8.00 to 9.00p.m., when the deceased and P.W.1 are near the house of P.W.2, in the public road, the accused by using filthy words abused the deceased. At that time, P.W.1 went into the house of P.W.2.
The deceased confronted the accused which resulted in a quarrel. While so, the accused took a wooden log and assaulted the deceased on his head. On seeing the same, P.W.1 and P.W.2 rushed to the scene of occurrence. By that time, the other persons who came there, attempted to catch the accused, but he ran away from that place.
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4. Immediately, P.W.1 and P.W.2 took the deceased to Krishnagiri Government Hospital. After examining the deceased, the Doctor advised P.W.1 and P.W.2 to admit the deceased in the Dharmapuri Government Hospital. The Doctors attached to the Dharmapuri Government Hospital has also not given a positive reply. Therefore, the deceased was admitted in the Salem Government Mohan Kumaramangalam Medical College Hospital, Salem. After two days of treatment, on 15.06.2016, the deceased succumbed to the injuries. On intimation from the hospital, PW10, Head Constable Grade-I attached to the Mathur Police Station recorded the oral complaint from P.W.1 which is marked as Ex.P.1. PW10 handed over the complaint to PW12, Sub-Inspector of Police, Mathur Police Station. Based on the complaint, Ex.P1, a case in Crime No. 251 of 2016 was registered for the offences under Section 294 (b), 324 and 506 (ii) of IPC on 12.07.2016 at 10.00 am. The first information report is Ex.P7.
5. After registration of the case, at about 11.30a.m., P.W.12 went to the scene of occurrence and prepared Observation Mahazar in the presence of P.W.8 [Udhayakumar] and one Krishnamurthy. Ex.P.8 is the Observation Mahazar. Ex.P.9 is the Rough Sketch. After preparation of those documents, P.W.12 recorded the statements of P.W.1 to P.W.5. Thereafter, she arrested the accused in Nadupattu Bus Stop. On such arrest, the accused gave confession statement and the same was recorded by P.W.12 in the presence of P.W.8 and one Krishnamurthy. After recording the confession statement, the accused brought the team, which are present at the time of giving confession, to the scene of occurrence and handed over the wooden log, which he used for commission of offence. The wooden log http://www.judis.nic.in 3/15 Crl.A.No.142 of 2018 was identified by the accused himself and it was recovered by P.W.12 under the cover of Mahazar in the presence of P.W.8. The admitted portion of the signature of P.W.8 found in the Observation Mahazar, Seizure Mahazar and confession statement were marked as Ex.P.2 to Ex.P.4. After recovering the wooden log, the accused was sent to judicial custody.
6. P.W.13 who was working as Inspector of Police by then in Mathur Police Station, received the case records from P.W.12 on 13.07.2016. On going through the case records, he altered the section of law into one under Section 307 of IPC under Ex.P.10. On 15.07.2016, at about 13.45 hours, he received the death intimation of deceased Karthick from Salem Government Mohan Kumaramangalam Medical College Hospital. Immediately, at about 18.30 hours, he altered the section of law from Sections 294[b], 324, 506[ii] and 307 of IPC to Sections 294[b], 324, 506[ii], 307 and 302 of IPC. The alteration report prepared by P.W.13 is Ex.P.11.
7. On 16.07.2016, at about 6.30p.m., in the presence of Panchayatars and witnesses, PW13 conducted enquiry and prepared Inquest Report. Unfortunately, the said Inquest Report is not exhibited before the trial Court. After preparation of Inquest Report, he sent a requisition letter to the Doctor for conducting autopsy over the dead body of the deceased Karthick.
8. P.W.9 [Dr. Karthik] now working as a Assistant Professor in the Medico-legal Department in Salem Government Mohan Kumaramangalam Medical College Hospital, has stated that on 16.07.2016, while he was on duty, he received http://www.judis.nic.in 4/15 Crl.A.No.142 of 2018 the requisition letter from P.W.13 and conducted autopsy over the dead body of the deceased Karthick. He found the following injuries:-
"(1) Surgically sutured would M-4 CMSx1 CmxBone deep noted over left temporal region.
Other findings: (1) O/D of Head : Scalp - Contusion M-
15x6x0.5 cms noted over left fronto parieto temporal region.
2. M-16x5x0.5 cms noted over right fronto parieto temporal region.
3. Vault - Linear Fracture M 10 cms noted over left temporo parietal region.
4. M-7 cms noted over right fronto temporal region.
5. Brain contusion Brain M-16x7x0.5 noted over left fronto temporo parietal region.
6. M-15x6x0.5 cms noted over right fronto temporo parietal region (7) difuse sub-dural Haemorrhage and sub Arachnoid Haemorrhage noted over both cerebral Hemisphere, base of skull
- fracture base noted over both right and left middle cranial."
9. PW9 opined that the deceased would appear to have died due to cranio cerebral injuries. Post Mortem Certificate issued by P.W.9 was marked as Ex.P.5. The requisition letter issued by P.W.13 was marked as Ex.P.6.
10. In the meantime, as already stated, immediately after the occurrence, the deceased Karthick was treated in Krishnagiri Government Hospital and thereafter, in Salem Government Mohan Kumaramangalam Medical College Hospital. The Doctors, who treated the deceased Karthick at that time were examined as P.W.14 and P.W.15. The Accident Register copy issued by the said Doctors were marked as Ex.P.14 and Ex.P.16 respectively. According to their evidence, the deceased Karthick at the time when he was admitted in the Hospital, sustained head injury. In continuation of the investigation, P.W.13 recorded 161 statement from P.W.9 [Dr.Karthik] and after completing the investigation, he filed a http://www.judis.nic.in 5/15 Crl.A.No.142 of 2018 charge sheet under Sections 294[b] and 302 of IPC.
11. Based on the above materials available, the trial Court framed the charges under Sections 302 and 294[b] of IPC, the accused denied the same and opted for trial. In order to prove his case on the side of the prosecution as many as 15 witnesses were examined as P.W.1 to P.W.15 and exhibited 17 documents as Ex.P.1 to Ex.P.17, besides 1 Material Object. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false, however, he did not choose to examine any witnesses nor did he mark any documents on his side.
12. Having considered all the above, the learned Principal Sessions Judge, Krishnagiri, found the accused guilty of murder and causing annoyance in the public place. Accordingly, the accused was convicted under Sections 302 and 294[b] of IPC and sentenced to undergo for the offences as stated in the first paragraph of this judgment. Aggrieved over the above conviction and sentence, the accused / appellant is before this Court with the present Criminal Appeal.
13. We have heard Mr. M.G. Udayashankar, learned counsel appearing for the appellant, Ms. M. Prabhavathi, learned Additional Public Prosecutor appearing for the State and also perused the records carefully.
14. In order to prove the guilt of the appellant, prosecution examined P.W.1, PW2, PW3, PW5 and PW6. Among those witnesses, PWs 1 and 2 have spoken about the wordy altercation between the deceased and the appellant, the http://www.judis.nic.in 6/15 Crl.A.No.142 of 2018 attack made by the accused and the injury sustained by the deceased. Moreover, they have also stated about the treatment given to the deceased. Finally, P.W.1 spoken about the lodging of complaint before P.W.10. In other words, PWs 1 and 2 were projected as eye witnesses to the occurrence.
15. P.W.3, P.W.5 and P.W.6 were cited as witnesses to the occurrence, however, as they did not suppor the case of prosecution, they were treated as hostile witnesses. Even during the time of cross examination by the prosecution, they have not stated anything in support of the prosecution.
16. P.W.4 [Vijayakumar] is the brother of the deceased Karthick. He has stated in his evidence that on 11.07.2016 at about 9.00p.m. both the deceased and appellant engaged in a quarrelled with each other. At that time, the appellant took a wooden log and attacked the deceased on his head. Immediately, he, along with P.W.1 and P.W.2, took the deceased to the Krishnagiri Government Hospital, where, after initial treatment, the deceased was referred to Government Hospital, Dharmapuri from where he was referred to Government Mohan Kumaramangalam Medical College Hospital, Salem.
17. P.W.7 [Venkatraj] is also a resident of the same Village, in which, the alleged occurrence had happened. He has stated that on the date of occurrence, due to wordy quarrel, the accused assaulted the deceased by using the wooden log and thereafter, the deceased fell down and after seeing the same, the accused ran away from the scene of occurrence.
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18. P.W.8 [Udayakumar] has stated in his evidence that on 12.07.2016, the Police attached to Mathur came to the scene of occurrence and prepared Observation Mahazar in his presence. He has further stated that in his presence, the accused gave confession statement and thereafter, as per the confession statement, the accused brought the Police to his house and identified the wooden log, which was used for the commission of offence.
19. P.W.9 [Dr.Karthik] attached to the Salem Government Mohan Kumaramangalam Medical College Hospital, stated in his evidence that on receipt of requisition given by P.W.13 [Murugan], he conducted autopsy over the dead body of the deceased Karthick. P.W.10 to P.W.12 had stated in their evidences about receiving of the statement from P.W.1 and about the investigation and the filing of the charge sheet.
20. P.W.14 and P.W.15 are the Doctors attached to Krishnagiri Government Hospital and Salem Government Mohan Kumaramangalam Medical College Hospital respectively. They have deposed about the treatment given to the deceased Karthick prior to his death.
21. The learned counsel appearing for the appellant would contend that PW1, PW2 and PW4 are projected as eye witness, but they are interested witnesses inasmuch as PW1 is the wife of the deceased, PWs 2 and 4 are mother and brother of the deceased respectively. Therefore, it is unsafe to base an order of http://www.judis.nic.in 8/15 Crl.A.No.142 of 2018 conviction on the basis of interested testimony of the prosecution witnesses. We are unable to accept this contention, Even assuming that PWs 1, 2 and 4 are interested witness, the prosecution has also examined PW7, an independent witness. PW7 in his deposition has stated that on 11.07.2016 at about 9.30 to 10.00 pm, he along with Dhanraj, Sridhar and Vijayakumar were casually having a chat and at that time, he saw the quarrel between the appellant and the deceased and the consequential attack by the appellant on the head of the deceased. PW7 also stated that he along with others have called the ambulance service and sent the injured to the hospital. Even in his cross-examination, he denied the suggestion that he did not witness the occurrence. Such evidence of PW7 corroborates the evidence of PW1, 2 and 4. In any event, merely because PWs 1, 2 and 4 are related to the deceased, their evidence need not be discarded.
22. The learned counsel for the appellant further stated that in the trial Court though it was stated that M.O.1 [wooden log] was recovered based on the confession statement given by the accused, the witness, who attested the confession statement has not stated anything about the manner of recording the confession statement and about the recovery. Hence, the evidence given by P.W.8 cannot be accepted for proving the recovery. Accordingly, he prayed for allowing the appeal and setting aside the order of conviction.
23. On considering the said submission, it is true that in the chief examination, P.W.8 did not say anything about the recording of confession statement by the Investigation Officer. However, the signature found in the http://www.judis.nic.in 9/15 Crl.A.No.142 of 2018 confession statement and the recovery Mahazar were exhibited as Ex.P.3 and Ex.P.4. It is a peculiar case that even after knowing the fact the said witnesses are not in favour of the prosecution, without treating them as hostile witnesses the learned Prosecutor proceeded with the trial. This is a lapse committed on the side of the prosecution. Further, the Court has also without indicating the lapses, conducted the trial which is not expected of. Thus, we are of the opinion that the prosecution has not proved recovery of Material Object i.e. M.O.1. At the same time, on the side of defence, no suggestion was putforth that the said weapon is not used for the commission of offence. However, such lapse on the part of the prosecution will not in any way affect the credibility of it's case when there are eye witnesses to the occurrence, which is also supported by medical evidence. We also hasten to add that the prosecution has examined the Doctors who initially treated the deceased, marked the Accident Register issued by them and the postmortem doctor. Further, the first information report itself was registered based on the statement given by the wife of the deceased and at that time the deceased was alive. The first information report came into existence at the earliest point of time. When these evidences are very much available, mere fact that the attesting witness PW8 did not say anything about the recovery will not assume significance for our consideration.
24. The learned counsel appearing for the appellant proceeded to contend that though P.W.13 [Investigation Officer] has stated about the preparation of Inquest Report, the same has not been exhibited before the trial Court. This is yet another fallacy on the part of the prosecution in not marking the Inquest Report. http://www.judis.nic.in 10/15 Crl.A.No.142 of 2018 In our opinion this may be an inadvertent omission. At the same time, we wish to observe that without marking the Inquest Report as exhibit, lethargically the trial Court has proceeded with the trial and pronounced the judgment. In fact, it is the duty of the Presiding Officer, to oversee that all the documents required for conducting the trial are marked at every stage of the trial. However, in this occasion, it is necessary and useful to consider the judgment of our Hon'ble Apex Court in SAMBHU DAS vs. STATE OF ASSAM reported in (2010) 10 SCC 374, in which, it has held as follows;
"Neither FIR, nor Inquest report nor post-mortem can be regarded as substantive pieces of evidence. FIR or inquest report may only be used to contradict or corroborate the maker thereof."
25. So, considering the principle laid down by our Hon'ble Apex Court, we are not in a position to reject the entire prosecution case for the omission committed by the Court below.
26. The next point projected by the learned counsel for the appellant is that, after examining P.W.13 [Investigation Officer], the Doctors, who treated the deceased were examined as P.W.14 and P.W.15. Due to the said procedure adopted by the Court below, the appellant has lost the opportunity to cross examine P.W.13 in respect to the evidence given by P.W.14 and P.W.15. Upon considering this argument, we feel that this is yet another lapse committed by the Court below. However, because of this reason, it cannot be said that the entire prosecution is vitiated. Moreover, it appear that the defence did not object to the course adopted by http://www.judis.nic.in the trial court during the examination of the witnesses and therefore, at the 11/15 Crl.A.No.142 of 2018 appellate stage, we are not inclined to consider this aspect of the matter.
27. To crown all the above, P.W.1 has clearly narrated the entire incident. To corroborate the same, P.W.2, P.W.4, and P.W.6 gave evidence in support of the prosecution. The said evidence given by those witnesses are corroborated through the Doctors, who gave treatment to the deceased Karthick. However, for punishing the appellant/accused under Section 302 of IPC, the prosecution must prove the intention of the accused at the time of occurrence. But, in this case, the witnesses, who saw the occurrence did not say about the previous enmity between the deceased with the appellant.
28. The intention on the part of the appellant to commit the offence is a question of fact, which is to be gathered from the acts of the parties. So, when a normal man does an act he should be credited with the intention of doing that which is inevitable consequence of his act. Further, the nature of intention has to be gathered from various circumstances, for instance, the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attending upon death. But in this case, as per the evidence of eye witnesses only due to the wordy quarrel, the alleged occurrence had happened. Therefore, we are of the considered opinion that the prosecution had not proved the intention on the part of the appellant to commit the offence of murder. Moreover, non-marking of Inquest Report and non-proving of recovery will affect the case instituted by the prosecution and therefore, we are of the considered opinion that the offence under Section 302 IPC has not been proved beyond reasonable doubt. However, as already observed, as per the evidence given by P.W.9, P.W.14 and P.W.15, the deceased http://www.judis.nic.in 12/15 Crl.A.No.142 of 2018 suffered bone fracture in his scalp. In the said situation, both the eye witnesses have stated about the assault committed by the appellant. The said circumstances conclusively prove that during the time of occurrence, the appellant knowingly, by using dangerous weapon, which is likely to cause death assaulted the deceased and hence, he committed an offence under Section 304(1) of IPC. Therefore, we come to the conclusion that the appellant committed the offences under Sections 304(1) and 294[b] of IPC.
29. In the result, this Criminal Appeal is partly allowed. The conviction and sentence imposed upon the appellant/accused by the learned Principal Sessions Judge, Krishnagiri in S.C.No.60 of 2017, dated 23.11.2017 is modified and the appellant/accused is convicted under Sections 304(1) and 294[b] of IPC. For the offence under Section 304(1) of IPC, the appellant is hereby sentenced to undergo five years Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo three months Simple Imprisonment. With regard to the other offence under Section 294[b] of IPC, the conviction and sentence awarded by the learned Principal Sessions Judge, Krishnagiri, is confirmed. The sentences imposed by us is ordered to run concurrently. It is also directed that the period of sentence already undergone by the appellant shall be given set off, as required under Section 428 Cr.P.C. The Trial Court is directed to take steps to secure the custody of the appellant for undergoing the remaining period of sentence.
[R.P.S.,J] [R.P.A.,J]
19.12.2019
Speaking Order/Non Speaking Order
Index
http://www.judis.nic.in : Yes / No
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Crl.A.No.142 of 2018
Internet : Yes
sri/rsh
To
1.The Inspector of Police,
Government of Tamil Nadu,
Mathur Police Station,
Krishnagiri District.
2.The Public Prosecutor,
High Court, Madras.
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Crl.A.No.142 of 2018
R.SUBBIAH, J
and
R.PONGIAPPAN, J
sri/rsh
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