Madras High Court
Raja vs State Rep. By on 20 January, 2010
Author: P.Murgesen
Bench: P.Murgesen
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/01/2010 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN AND THE HONOURABLE MR.JUSTICE RAJA ELANGO Criminal Appeal No.439 of 2003 Raja ... Appellant Vs State rep. by Inspector of Police, Kadaiyanallur Police Station, in Crime No.368/2000 Tirunelveli District. .. Respondent Appeal filed under Section 374(2) of Cr.P.C. against the order of conviction and sentence passed in S.C. No.609/2001 dated 11.11.2002 on the file of the learned II Additional District Judge, Tirunelveli. !For Appellant ... Mr.R.Venkateswaran and Mr.M.M.E.Philips, Legal Aid Counsel ^For Respondent ... Mr.Isaac Manuel, Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by P.MURGESEN, J.) This appeal is directed against the order of conviction and sentence passed in S.C. No.609/2001 dated 11.11.2002 on the file of the learned II Additional District Judge, Tirunelveli.
2. The appellant is the first accused and the respondent is the complainant.
3. The case of the prosecution is as under:-
P.W.1-Jayaraj is the resident of Madurai District and he is living in Surandai, Tirunelveli District for the past 14 years doing Murukku (KWf;F) business and he sends Murukku to outside places. On 26.11.2000 at about 11.00 a.m., he sent Murukku through one Mahendran to Guruswamy Mudaliar Shop in Kadayanallur. The said Mahendran went to Kadayanallur in a Bajaj M-80 bike, carrying the murukku. At about 12.00 noon, P.W.1 received a phone call from the said Mahendran that he was beaten by one Raja and Ponnangan and he was threatened by them that he should not bring murukku to that place. On hearing the message, P.W.1 along with one Jayachandran, Sekar and Pandi, went to the said Guruswamy Mudaliar Shop in a Taxi driven by P.W.6-Mullaithurai. At about 1.45 p.m., both the accused came there. P.W.1 and others questioned them why they are creating problems. At that time, the accused Ponnangan caught hold of one Virumandi who came along with P.W.1, and the accused Raja stabbed the said Virumandi at three places with the help of a knife (R{{upfj;jp) in the presence of P.W.1 and P.W.5-Vellathurai. Then, a complaint was lodged before before P.W.14-Thambidurai, who was the Sub-Inspector of Police in the Kadayanallur Police Station at that time. P.W.14 registered the complaint in Crime No.368 of 2000 on the file of the Kadayanallur Police Station under Section 302 IPC and prepared Ex.P17-First Information Report. Thereafter he sent the FIR and the complaint through P.W.12-Jayabalan, Head Constable to the Judicial Magistrate.
P.W.15-Shanmugaswamy was taking additional charge of the Inspector of Police at that time. He took up the case for investigation. He visited the scene of occurrence and conduct inquest over the body of the deceased in the presence of Panchayatars and prepared Ex.P18-Inquest Report. Then he handed over the body of the deceased to P.W.13-Murugan, who was the Head Constable at that time, for conducting post mortem. Thereafter he prepared Ex.P6-Observation Mahazar and Ex.P19-Rough Sketch. Thereafter he recorded the statements of witnesses Jayaraj, Jayachandran, Mahendran, Sekar, Mariappan, Shajahan, Isakkimuthu, Venkatachalam, Vellathurai, Mariappan, VAO and Lakshmanan-Thalaiyari. Thereafter he recovered M.Os.1 and 2-Blood stained earth and ordinary earth and also M.O.3-Kick Starter of Bajaj M-80 vehicle (blood-stained) under Ex.P7-Athatchi. On 26.11.2000, at 11.00 p.m., he arrested the accused near Krishnapuram Bus Stand, Kadayanallur. The first accused gave confession statement in the presence of P.W.9-Muthaiah, Krishnapuram Village Thalaiyari and P.W.10-Arumugaswamy, Village Administrative Officer, Krishnapuram. Ex.P10 is the signature of P.W.10 and Ex.P8 is the signature of P.W.9. On the basis of the confession statement given by the first accused, M.Os.4 and 5-Surikathi and blood-stained Saram were recovered. Thereafter he recorded the statement of the first accused Raja with regard to injuries sustained by him which pertains to Crime No.369 of 2000 registered on the complaint given by the first accused, under Sections 147, 148 and 324 IPC. Ex.P20 is the file containing the final report in respect of Crime No.369 of 2000 which was registered based on the complaint given by the first accused Raja. Thereafter P.W.16-Nagalingam, Inspector of Police took up the case for investigation. On 29.11.2000, he recorded the statement of the Doctor who conducted post mortem and also the Sub-Inspector of Police, Thambidurai. On 30.11.2000, he sent a requisition for forensic examination of the material objects, under Ex.P13. P.W.11-Karunakaran was the Junior Assistant in the Judicial Magistrate Court, Sengottai District. He received Ex.P13 from the Inspector of Police. On the basis of this request, Ex.P14-letter from the Judicial Magistrate's Court was sent. Ex.P15 is the Forensic Lab Report and Ex.P16 is the Serology Report. After completing the investigation, P.W.16 filed charge sheet against the accused under Sections 341 and 302 r/w 109 IPC, on 02.01.2001.
4. Before the Trial Court, P.W.1 to P.W.16 were examined and Ex.P1 to P20 and M.Os.1 to 8 were marked. On consideration of the evidence adduced on record, the Trial Court convicted the appellant / first accused under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo R.I. for two years. The Trial Court acquitted the second accused from the case.
5. Challenging the conviction and sentence imposed by the Trial Court, the present appeal has been filed by the appellant/first accused.
6. On 06.01.2010, when this appeal was taken up, there was no representation for the appellant. Hence the Registry was directed to appoint a Legal Aid Counsel for the appellant. Accordingly, Mr.M.M.E. Philips, Legal Aid Counsel was appointed. Today, when this appeal was taken up, the counsel for the appellant was present and the Legal Aid Counsel was also present. Legal Aid Counsel assisted the counsel for the appellant.
7. Heard the learned counsel on either side.
8. P.W.1 is the resident of Madurai District and he is living in Surandai, Tirunelveli District for the past 14 years doing Murukku (KWf;F) business and he sends Murukku to outside places. On 26.11.2000 at about 11.00 a.m., he sent Murukku through one Mahendran to Guruswamy Mudaliar Shop in Kadayanallur. The said Mahendran went to Kadayanallur in a Bajaj M-80 bike, carrying the murukku. The accused have quarrelled with the said Mahendran threatening him that he should not bring murukku to the shop. The matter was informed to P.W.1 through phone. Thereafter P.Ws.1, 2, 3, 4 and 5 came to the scene of occurrence in the taxi of P.W.6. Ex.P2 is the trip sheet of the taxi of P.W.6. At that time, quarrel arose between both the parties. According to the prosecution, the accused have stabbed Virumandi by Surikathi.
9. Learned counsel for the first accused / appellant submitted that it is the case of sudden provocation and that the accused have also sustained injuries. The stabbing of Virumandi was spoken by P.Ws.1 to 4. They were all present during the occurrence. A complaint was also given by the first accused and it was registered in Crime No.369 of 2000 under Sections 147, 148 and 324 IPC. That case was registered by P.W.15 and he prepared printed Ex.P20-Printed FIR to that effect and that case was conveniently closed.
10. The first accused sustained injuries and he was treated by P.W.7- Balaramakrishnan, who was the Assistant Surgeon in the Kadayanallur Government Hospital at that time. His evidence would show that he examined the first accused at 2.15 p.m. The occurrence took place at 2.00 p.m. The first accused gave a complaint and that complaint was registered subsequent to the complaint given by P.W.1. It is the case of the prosecution that the first accused gave the complaint only on 27.11.2000 subsequent to his escape from the hospital. This cannot be true. The stand of the prosecution is shattered by the evidence of the Doctor P.W.7. P.W.7 said that at 2.15 p.m. on 26.11.2000 the first accused came to him for treatment and that he informed the Doctor that he was attacked by 6 persons with the help of an iron rod and he was attacked at 2.00 p.m. on that day. Ex.P5-Accident Register Copy of the first accused would show that, in the column "person who brought the victim to the hospital" something was written and it was scrapped. Evidence of P.Ws.15 and 16 would show that the first accused gave the complaint to the Police and he was taken to the hospital by the Policeman. P.W.16 is unable to say about the person who took the first accused to the hospital. He did not write it in the diary. He has not seen the intimation of the hospital. Even the evidence of P.W.15 would show that on the basis of the complaint given by the first accused, he examined the witnesses Mariappan, Ponnurangan, Shajahan, Isakkimuthu and Venkatachalam, whereas their statements were not placed before the Court. It is the duty of the prosecution to place all the materials relevant to the case before the Court, but it has not been done. As pointed out by the Hon'ble Supreme Court, it is the duty of the Court to remove the grain from the chaff to find out the truth. It is clear that in the scene of occurrence, there was a quarrel between the parties due to which both the parties sustained injuries and the injuries on the first accused were not explained satisfactorily. The complaint given by the first accused was thrown out without following any procedure. So, it is clear that the first accused had no intention to commit offence. There was only a scuffle between the two parties and the occurrence took place due to a sudden quarrel. So, the act of the first accused will come only under Section 304(ii) IPC.
11. In view of the reasons stated supra, the conviction of the first accused under Section 302 IPC is modified to one under Section 304(ii) IPC and the sentence is reduced from life imprisonment to 5 years R.I. The payment of fine of Rs.1,000/- in default to undergo R.I. for two years, are confirmed. The period of imprisonment already undergone by the appellant / first accused shall be given set off.
12. The Criminal Appeal is partly allowed.
KM To
1.The II Additional District Judge, Tirunelveli.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.