Madras High Court
Parthasarathy vs State Through on 19 July, 2010
Bench: M.Chockalingam, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/07/2010 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR. JUSTICE M.DURAISWAMY Criminal Appeal (MD) No.21 of 2010 Parthasarathy .. Appellant vs State through represented by Inspector of Police, Karur Town Police .. Respondent (Crime No.118/2006) Criminal Appeal filed under Section 374 of the Cr.P.C against the Judgment of conviction and sentence dated 02.11.2009 made in S.C.No.92 of 2007 on the file of the Principal Sessions Court, Karur. !For appellant ... Mr.B.Saravanan ^For respondent ... Mr.Daniel Manoharan Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM,J) Challenge is made to the judgment of the Principal Sessions Division, Karur, dated 2.11.2009 made in S.C.No.92/2007 whereby the sole accused/ appellant stood charged, tried and found guilty under Sections 302 and 324 of the IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- and in default to pay the fine, to undergo simple imprisonment for three months for the offence under Section 302 of the IPC and to undergo Rigorous Imprisonment for one month for the offence under Section 324 of the IPC.
2. The short facts that are necessary for the disposal of this appeal can be stated as follows:
(i) PW.1 is the husband of the deceased, Banumathi. PW.1 was carrying on a cycle shop, by name, Ayyappan Puncture shop, nearby the place of occurrence at Karur. The deceased developed illicit intimacy with the accused. They had often quarrels. This came to the knowledge of PW.1, husband of the deceased and he rebuked them but they did not stop their illicit intimacy. Previously, she got a sum of Rs.45,000/- from him and she did not repay and thus, the accused/appellant could not carry on his welding shop. Hence, he developed enmity against the deceased.
(ii) On 11.2.2006 at about 9.00 p.m., the wife/deceased came to the shop of PW.1; the deceased and PW.1 were chatting for some time outside their shop;
after this, they wanted to go and when PW.1 was about to start his two wheeler, the accused/appellant came by his Yamaha Motor Bike and stopped near the shop. On seeing him, the deceased started running towards north. Immediately, the accused/appellant chased her with a Bill Hook. Looking at this, PW.1, husband of the decease, went to rescue her and before he had gone to nearby, the accused/appellant attacked her once. PW.1 tried to snatch the Bill Hook and in that process, he also sustained injury in the little finger on his right hand. Not satisfied with the first blow, he again attacked her twice and she fell down and died on the spot and the accused/appellant ran away from the place of occurrence. All that was witnessed by PWs.2, 3, 4 and 6.
(iii) PW.1 immediately proceeded to the respondent Police Station and gave a complaint Ex.P.1 and the case came to be registered in Crime No.114/2006 under Sections 341, 324 and 302 of the IPC. Printed FIR Ex.P.13 was despatched to the Court.
(iv) On receipt of the copy of the FIR, immediately PW.15, Inspector of Police of the Circle took up investigation and proceeded to the spot at 10.45 p.m., made an inspection and prepared an Observation Mahazar Ex.P.8 and a Rough Sketch Ex.P.14 in the presence of witnesses. In the presence of witnesses, he recovered bloodstained earth MO.2 and sample earth MO.3 under the cover of Mahazar Ex.P.19 and on 12.2.2006 at 7.00 a.m., he proceeded to the Government Hospital, Karur and conducted inquest on the dead body of the deceased and the Inquest Report was marked as Ex.P.15.
(v) PW.1 was sent to the Government Hospital, Karur with a memo where he was examined by PW.7 and injury was noted in the Accident Register Copy Ex.P.7.
(vi) On the requisition made, PW.5 Doctor conducted autopsy on the dead body of the deceased and he issued a Post-Mortem Certificate Ex.P.6 wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to cut injury on the neck, 14 to 18 hours prior to autopsy.
(vii) Pending investigation, on 13.02.2006, at 10.00 a.m., the accused/appellant was arrested in the presence of witnesses. During the course of enquiry, he came forward to give a confessional statement and the same was recorded in the presence of witnesses. Ex.P.16 is the admissible part of the confessional statement. Pursuant to the confession, the accused/appellant produced Bill Hook MO.1 and Blood stained Shirt MO.4 and the same were recovered under the cover of Mahazar Ex.P.18.
(viii) All the Material Objects recovered from the place of occurrence and from the dead body pursuant to the confession statement were subjected to chemical analysis. Pursuant to which Ex.P.23 Biology report and Ex.P.24 Serologist report were received.
(ix) PW.16 took up further investigation. On completion of the investigation, the investigating officer, PW.16 filed a final report. The case was committed to the Court of Sessions. Necessary charges were framed against the accused.
3. In order to substantiate the charges levelled against the accused/appellant, the prosecution examined 16 witnesses and relied on 24 Exhibits and 19 MOs. On completion of the evidence on the side of the prosecution, when the accused was questioned under Section 313 Cr.P.C. on the incriminating circumstances found in the evidence of the prosecution witnesses, he denied them as false. Neither witness was examined nor documents were marked on the side of the defence. The trial Court, after hearing the arguments advanced by either side and on considering the materials available on record, took the view that the prosecution has proved its case beyond reasonable doubts as per the charges and awarded punishment as referred to above.
4. Advancing the arguments on behalf of the accused/appellant, Mr.B.Saravanan, learned Counsel appearing for the appellant would submit as follows:-
(i) According to him, the prosecution has miserably failed to prove its case. Though the prosecution has examined PWs.1 to 4 and PW.6, they have turned hostile except PW.1.
(ii) From the evidence of PW.1, it would be quite clear that the occurrence had taken place at 9.00p.m., on 11.2.2006. Immediately, after the occurrence, he rushed to the respondent Police Station and gave Ex.P.1 complaint. The narration of the incident as found in Ex.P1 are contrary to the evidence given before the Court.
(iii) According to PW.1, insofar as the injury is concerned, first injury was sustained to him and the accused/appellant once only attacked the deceased, which was contrary to the evidence given by Doctor PW.5. If looked into the Post-Mortem Certificate Ex.P.6, two injuries were mentioned. Thus, it would be quite clear that the seat of injuries adduced by PW.1 would be indicative of the fact that the occurrence could not have taken place at all.
(iv) According to PW.1, when the accused/appellant was attacking his wife, he blocked him and thus, the injury was sustained to him on his little finger in the right hand. Had he really blocked the accused/appellant from attacking the deceased, injuries could have been different.
(v) Added further the learned counsel, the place of occurrence was also not found to be true. In the A.R.Copy Ex.P.7, it is stated that PW.1 sustained injury near Kottaimedu Pillaiyar Temple but as could be noticed from prosecution case, it was only near Tokkio Tea Stall.
(vi) Added further the learned counsel, the investigator claims arrest and recovery of MO.1 Bill Hook, pursuant to the confessional statement on 13.2.2006.
PW.1 has categorically stated that the accused/appellant was in the Police Station in the custody of police on the very next i.e. on 12.12.2006. Thus, it would be quite clear that the claim of the investigator as to the arrest, confession and recovery cannot be but be false.
(vii) The prosecution has miserably failed to prove the case. If the evidence of PW.1 is not available to the prosecution, the prosecution had no evidence to offer. In the absence of evidence, the trial Judge has taken an erroneous view and rendered judgment of conviction and sentence against the accused/appellant and hence, he has got to be acquitted.
(viii) On the second line of argument, the learned counsel would submit that even assuming that it was the accused/appellant who attacked the deceased and caused her death, the act of the accused would not attract the penal provision of murder. Admittedly, she developed illicit intimacy with the accused/appellant. The deceased had got a sum of Rs.45,000/- from him and she did not repay and she was responsible for his business loss and coming into the street. At the time of occurrence, he uttered the words, "you were responsible for losing my life and my business and coming to street", and so telling attacked her. All would clearly indicate that in view of sustained provocation he actually murdered her. Under the circumstances, the act of the accused neither intentional nor premeditated. This legal aspect has got to be applied to the factual matrix of the case.
5. The court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and also scrutinised the materials available.
6. It is not in controversy that one Banumathi, wife of PW.1 was done to death in the incident that took place at 9.00 p.m. on 11.2.2006; following the registration of the case, under Sections 341, 324 and 302 of the IPC, investigation was taken up by the investigating officer; after preparation of inquest report Ex.P.15, the dead body was subjected to Post-Mortem by PW.5 and he has given a Post-Mortem Certificate Ex.P.6 wherein he has opined that the deceased died out of shock and haemorrhage due to injuries sustained. The fact that the deceased died out of homicidal violence was not in controversy before the trial Court and the Trial Court has rightly recorded that she died out of homicidal violence.
7. In order to substantiate the fact that it was the accused who attacked the deceased with Bill Hook MO.1 and caused instantaneous death, the prosecution examined PWs.1 to 4 and PW.6 as the eye-witnesses and unfortunately, for the prosecution, except PW.1, all of them turned hostile. The Indian legal jurisprudence does not expect the quantity of evidence but the quality of evidence. In the instant case, it is true the prosecution had the evidence of PW.1 only. It is also true that PW.1 was the husband of the deceased but on that ground his evidence cannot be rejected. Before rejection, the Court must apply the test of careful scrutiny. Even if the test is applied, the evidence of PW.1 has got to be accepted since it inspires the confidence of the Court.
8. According to the evidence of PW.1, at the time of occurrence, she was actually sitting in front of the shop of her husband/PW.1 at about 9.00 p.m., on 11.2.2006 and PW.1, husband of the deceased, was about to take the deceased with him in his two wheeler. At that time, the accused/appellant came there. On seeing the accused/appellant, the deceased started running; while she was running, the accused/appellant chased her with the Bill Hook. Looking at the incident, PW.1 was also running behind him in order to save her. The accused attacked the deceased on the neck with Bill Hook and when PW.1 attempted to grab the Bill Hook, he sustained injury in his little finger. When she fell down, he continued to cut her on the neck. The deceased died on the spot. Thus, the evidence of PW.1 would make it clear that it was the accused/appellant who attacked her with the Bill Hook MO.1 and caused the same. In fact, he rushed to the Police Station and gave Ex.P.1 complaint and it is true, thereafter, along with medical memo, he was sent to the Government Hospital, Karur, where Doctor PW.7 treated PW.1. PW.1 has clearly stated that the injury was caused by a known person at Kottaimedu Pillaiyar Temple.
9. According to the prosecution, the occurrence had taken place near Tokkio Tea Shop but in Ex.P.7 A.R.Copy issued for the injury sustained by PW.1 states that near Kottaimedu Pillaiyar Temple. Now, at this juncture, there is no doubt, the Observation Mahazar Ex.P.8 and Rough Sketch Ex.P.14 were prepared by the investigator at the time of investigation of the case. The contents of either the Observation Mahazar Ex.P.8 or Rough Sketch Ex.P.14 were never disputed by the appellant. Apart from that, the witnesses were examined to prove these facts. On looking at the Observation Mahazar Ex.P.8 and also Rough Sketch Ex.P.14, it would clearly indicate that there was a shop named Ayyappan Puncture shop, which was actually owned by PW.1 and Tokkio Tea Shop where the occurrence had taken place and nearby this shop, there was a Temple called Bala Vinayagar Temple. Therefore, it is clear that the occurrence place is clearly brought-forth by the prosecution and it has also been spoken to by PW.1. It is true there are certain discrepancies regarding the place of occurrence but those discrepancies are minor most which in the considered opinion of the Court does not affect the truth of the prosecution.
10. Insofar as the recovery of MO.1 Bill Hook pursuant to the alleged confessional statement, the reason put-forth by the learned counsel for the appellant cannot be accepted. According to the learned counsel, PW.1 had admitted that the accused/appellant was in the custody of the police, the next day of the occurrence, i.e. on 12.2.2006 and hence, the accused/appellant was arrested and pursuant to the confession, the recovery of MO.1 Bill Hook, according to the learned counsel for the appellant cannot be believed. The investigator would claim that the accused/appellant was arrested on 13.2.2006 and during the course of investigation, the accused/appellant voluntarily came forward to give confessional statement and pursuant to the confession, the same was recovered in the presence of VAO PW.10 and his assistant.
11. Even barring this evidence, the Court is of the considered opinion that the prosecution had sufficient evidence before the trial Court. Since the evidence of PW.1 who had sustained injury in the process of occurrence, inspires the confidence of the Court, the Court is unable to notice any doubt in the case of the prosecution. It is settled principle of law that in a given case, when a witness happened to be the injured witness, his evidence cannot be rejected. The evidence of PW.1 cannot be discarded in the absence of any strong circumstances or reasons are brought out. In the instant case, the Court is unable to notice either any reason or strong circumstance to discard the evidence of PW.1. The evidence of PW.1 has been rightly accepted by the trial Court. The finding of the trial Judge that it was the accused/appellant who attacked the deceased with Bill Hook MO.1, apart from causing injury to PW.1 was correct.
12. Insofar as the second line of argument, the Court is able to see force in the contention put-forth by the leaned counsel for the appellant. Even as per the prosecution, the deceased developed illicit intimacy with the accused/appellant. In the past, it was actually warned by PW.1 but she did not stop with it. She also got money from the accused/appellant about Rs.45,000/- and she did not repay and thus, he could not carry on his business. Going through the evidence brought in the finding of the trial Court, it is clear that the accused/appellant was really provoked that she was responsible for the losing his life and his business and he was placed in the street and even in the confessional statement and also at the time of occurrence, he had uttered that "you were responsible for losing my life and my business and coming to street", and on saying so he cut her. Thus, these were actually lingering in his mind. Hence, the act of the accused would not attract the penal provision of murder but the act of the accused would attract the penal provision of Section 304 Part I, of the IPC and imprisonment of seven years rigorous imprisonment would meet the ends of justice.
13. Hence, the conviction and sentence imposed by the trial Court on the accused/appellant under Section 302 of the IPC is set aside and he is convicted under Section 304 Part I, of the IPC and sentenced to undergo seven years rigorous imprisonment. The fine amount imposed under Section 302 of the IPC is ordered to be treated as one imposed under Section 304 Part I, of the IPC. The conviction and sentence imposed on the accused/appellant under Section 324 of the IPC is sustained. Both sentences shall run concurrently. The period of imprisonment already undergone by the accused/appellant is directed to be given set off. Accordingly, the Criminal Appeal is disposed of.
asvm To
1.The Principal Sessions Court, Karur.
2.Inspector of Police, Karur Town Police.
(Crime No.118/2006)
3.The Additional Public Prosecutor, Madurai Bench of Madras High court, Madurai.