Madras High Court
Mani vs State Rep. By Inspector on 14 November, 2002
Author: N.Dhinakar
Bench: N.Dhinakar, F.M.Ibrahim Kalifulla
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14/11/2002
CORAM
THE HONOURABLE MR.JUSTICE N.DHINAKAR
AND
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
Criminal Appeal No.966 of 1997
Mani .. Appellant
-vs-
State rep. By Inspector
of Police, Kaveripattinam
Police Station, Kaveripattinam
Taluk, Dharmapuri District. .. Respondent
Appeal against the judgment of the learned II Additional Sessions
Judge cum Additional Chief Judicial Magistrate, Dharmapuri at Krishnagiri,
made in S.C.No.15 of 1993 dated 13.8.1996.
!For Appellants : Mr.S.Nethaji
for Mr.P.V.Bakthavatchalam
^For Respondent : Mr.V.M.R.Rajendran
Addl. Public Prosecutor.
:J U D G M E N T
(Judgment of the Court was delivered by N.DHINAKAR, J.) The appellant was tried before the learned Principal Sessions Judge, Dharmapuri, on a charge of murder with an allegation that at 10.00 a.m. on 29.12.91, he dropped a stone on the head of Kannammal and caused her death. The learned Sessions Judge sentenced him to imprisonment for life, which is under challenge in this appeal.
2. The case of the prosecution is this:-
The accused was a resident of Palakode and was a coolie by profession. He had an acre and a half of land and three years prior to the date of incident, he was under the employment of a contractor, Doraisamy. The deceased Kannamal also joined Doraisamy as a coolie and the accused developed intimacy with that Kannammal. The intimacy between the accused and Kannammal went to the knowledge of his wife and therefore, the accused left his house and went to Royakkottai. He used to visit Kannammal without the knowledge of others and whenever he used to visit, he will pay about Rs.100/- or Rs.200/- for her expenses. The deceased Kannammal also used to meet him and collect moneys from him. The accused obtained a loan of Rs.1,000/- from a finance company and handed over the same to Kannammal along with a sum of Rs.4,000 /-, which he bid in a chit. He was unable to continue to pay the chit amounts. On account of his debts and on account of his illicit relationship with Kannammal, he could not go and join his family. A month prior to the date of incident, the deceased asked him to give her Rs.500/- with a promise that she will return the amount in ten days. He paid the amount. But the deceased did not repay the amount. Therefore, the accused went to her house and asked for the amount and the deceased informed him that she will pay the amount after some time. The accused asked for the amount after a few days. But the deceased was not properly responding. The accused got angry and went away. On 27.12.91 at about 7.00 p.m., the accused went to the house of the deceased and wanted the money to be returned and the deceased promised to pay the amount on the next day. But, on the next day also she did not pay. She took bed along with him. The accused realised that the deceased is not intending to pay the amount and also felt bad that on account of his illicit relationship with Kannammal, he is not able to continue to live with his wife and children and therefore, decided to finish her of. On 29.12.91, the deceased asked for money from the accused by telling him that she need the amount to visit the doctor. The accused wanted her to go along with him and he took her to Mudalipatti. There he asked the deceased to repay the amount. But the deceased refused to pay the amount and thereafter, he slapped her on the cheek. She fell down. The accused lifted a stone, which was lying nearby and dropped it on her head, resulting in bleeding injuries to her. He, thereafter, pushed the body into the water in a river. He found her dead. Therefore, he went straight to Palakode and realising that he will be caught, appeared before P.W.1, the Village Administrative Officer at about 7.00 a.m. on 30.12.91. He narrated the incident to P.W.1, who reduced the said statement of the accused, which stands marked as Ex.P.1. P.W.1, thereafter, proceeded to Karimangalam police station and handed over the accused and Ex.P.1 to P.W.9 , the Sub-Inspector. P.W.9, on receiving Ex.P.1, registered a case in Crime No.962 of 1991 against the accused under Section 302 I.P.C. by preparing express reports. Ex.P.11 is a copy of the printed first information report. The accused, who was produced before him, was locked up. The information was sent to higher officials.
3. On receipt of the information, P.W.10, the Inspector of Police, took up investigation in the crime, after receiving a copy of the printed first information report at the police station. He questioned the accused and the accused admitted the occurrence. Thereafter, P. W.10 reached the scene of occurrence and at 11.30 a.m., prepared an observation mahazar, Ex.P.3. He drew a rough sketch, Ex.P.12. The scene of occurrence was caused to be photographed. The inquest was conducted between noon and 2.00 p.m. in the presence of panchayatdars and at the time of inquest, P.Ws.1, 2 and others were examined and their statements were recorded. After the inquest, the body was handed over to a police constable with a requisition, Ex.P.14, to the doctor for conducting autopsy.
4. On receipt of the requisition, C.W.1, the Civil Assistant Surgeon attached to Government Hospital, Dharmapuri, conducted autopsy and found the following injuries, which he noted in Ex.P.16, the postmortem certificate, with his opinion that the deceased died on account of shock and haemorrhage due to the injuries, about 30 to 34 hours prior to autopsy:-
1.A lacerated injury over the left eyebrow of 3 cms. X 1 cm. X bone deep.
2.A lacerated injury over the left lower eyelid of 3 cms. X 2 cms. X bone deep.
3.A lacerated injury over the tip of nose 2 cms. X 1 ½ cm. X skin thickness.
4.A lacerated injury over the right temporal region of 5 cms. X 2 cms. X skin deep.
5.A lacerated injury over the left parietal region of 15 cms. X 2 cms. X bone deep.
6.A lacerated injury over the right ear outer outer helix of 2 cms. X 1/2 cm. X whole thickness of the ear.
7.A contusion over the left side shoulder and chest of 5 cms. X 10 cms. X skin with fracture of left clavicle and left ribs, 2, 3 and 4.
5. P.W.10, in the meantime, continuing with his investigation, questioned other witnesses and recorded their statements. M.Os.1 to 3, the clothes of the deceased, produced by the constable, who was present at the time of post-mortem, were seized under Form 95. The final report was filed against the accused on 31.7.91 by the successor of P.W.10, after his transfer.
6. The accused was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him and he denied all the incriminating circumstances.
7. The learned counsel appearing for the appellant submits that since the prosecution did not examine any eye witness, the statement of the accused given to P.W.1 cannot be taken into consideration to find the accused guilty. We have heard the learned Additional Public Prosecutor and perused the materials.
8. The case of the prosecution is that Kannammal died on account of homicidal violence and to establish the said fact, the prosecution marked Ex.P.16, the post-mortem certificate issued by the doctor, who conducted autopsy, through P.W.10, the Inspector, who conducted investigation. The prosecution before the trial Court did not examine the doctor and P.W.10 gave an explanation that since the doctor is bedridden and cannot move out of the bed, he is not examined and therefore, he marked the said document. We took the view that the said document, Ex.P.16, marked through the investigating officer, cannot be looked into, unless the contents are proved. If the prosecution could not examine the doctor, who conducted autopsy and issued Ex.P.16, it ought to have examined some other doctor, who knew the hand-writing and the signature of the doctor, who issued Ex.P.16. It is unfortunate that the prosecution did not do so and the Court also allowed the prosecution to mark Ex.P.16 through the investigating officer without resorting to the provisions found in the Code of Criminal Procedure ( Cr.P.C.).
9. Section 291 Cr.P.C. contemplates that the deposition of a civil surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission under this Chapter, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness and that the Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such deponent as to the subject-matter of his deposition. Therefore, if the medical officer was unable to move from his sick bed, he could have been examined through a commission under Section 291 Cr.P.C. Section 285 Cr.P.C. deals with as to whom the commission is to be issued and Section 286 Cr.P.C. deals with the process of execution of the commission. It could be seen from Section 285 Cr.P.C. that if the witness is within the territories to which the Code extends, the commission shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to be found and if the witness is in India, but in a State or an area to which the Code does not extend, the commission shall be directed to such Court or officer as the Central Government may, by notification specify in this behalf. Sub-section (3) also deals as to how a commission is to be issued to examine a person, who is outside India. Section 286 Cr.P.C. contemplates that the Chief Metropolitan Magistrate or Chief Judicial Magistrate, on receipt of the commission, shall summon the witness before him or proceed to the place where the witness is or he can appoint on his behalf, a Metropolitan Magistrate or a Judicial Magistrate to take down the evidence of the witness in the same manner, and may for this purpose exercise the same powers, as in trials or warrant-cases under the Code. Under Section 288 Cr.P.C., any commission issued under Section 284 Cr.P.C., after its due execution, shall be returned, together with the deposition of the witness examined thereunder, to the Court or Magistrate issuing the commission; on the return of the commission after its execution, the deposition shall be open at all reasonable times to inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record and under sub-section (2) of Section 288 Cr.P.C., any deposition so taken, if it satisfies the conditions prescribed by section 33 of the Indian Evidence Act may also be received in evidence at any subsequent stage of the case before any another Court.
10. The provisions, which we have indicated above, therefore, provide ample powers to the Sessions Judge to examine the medical officer on commission and the learned Sessions Judge has committed an error by allowing a document, Ex.P.16, to be marked through the investigating officer, without resorting to the procedure contemplated in the Code for examining the medical officer and the prosecution has also failed in not requesting the Court to invoke the power to issue commission and examine the witness, if the physical condition of the medical officer, who conducted autopsy, was so bad that he could not attend to the Court.
11. As the contents of the document were not proved by the procedure established by law, we felt that Ex.P.16 cannot be looked into by the Court unless it is proved in terms of the provisions of the Evidence Act and in order to secure the ends of justice, we decided to examine the doctor, who conducted autopsy, as a Court witness and accordingly, we issued summons to the doctor, who appeared before us today. His evidence was recorded after he was sworn in. He was also cross-examined by the learned counsel for the appellant and by the learned Additional Public Prosecutor. We have perused the evidence of the doctor and in his evidence he has stated that he conducted autopsy on the body of the deceased Kannammal and found the injuries, which he noted in Ex.P.16, the post-mortem certificate issued by him. He was of the opinion that all the injuries are cumulatively fatal in nature. The evidence of the doctor, therefore, indicates that Kannammal died on account of homicidal violence, which fact is also not disputed by the defence.
12. The question that is to be decided by us is whether the prosecution has succeeded in establishing that Kannammal was murdered by the accused and to prove the said fact, the prosecution before the trial Court, relied upon the evidence of P.W.4 and Ex.P.1, the statement given by the accused to P.W.1, the Village Administrative Officer. The evidence of P.W.4 is to the effect that about five years prior to the date of his giving evidence in Court, he saw the accused and the deceased going together and that after some time, the accused alone returned. It is his further evidence that at about 11.00 a.m. on the next day, he saw a crowd and went there and found a woman lying with injuries. This, by itself, though may not be clinching to say that the accused has murdered the deceased, the statement of the accused given to P.W.1 clearly show his complicity in the crime. According to P.W.1, the Village Administrative Officer, the accused appeared before him at 7.00 a.m. on 30.12.91 and informed him that he has dropped a stone on the head of Kannammal and caused her death. P.W.1 has further deposed that he took the accused and Ex.P.1 to the police station and handed over the same to P.W.9, the Sub-Inspector. His evidence is supported by P.W.9, who says that the accused and the statement, Ex.P.1, were handed over to him by P.W.1. We have perused Ex.P.1. The contents of Ex.P.1 show that it is voluntary in nature. It contains several details, which could not have been in the knowledge of any one, unless they were given by the accused. The relationship of the accused with the deceased and the conduct of the deceased in taking bed with him on the previous night are all matters, which were within the exclusive knowledge of the accused and therefore, could have been given only by the accused. We also do not doubt the evidence of P.W.1, who is an independent witness. Nothing was suggested to him by the defence to show that he had motive to speak falsehood.
13. On going through the evidence of P.W.1 and the contents of Ex.P.1, we are satisfied that the accused murdered Kannammal by dropping a stone and appeared before P.W.1 on the next day and gave a statement implicating himself with the crime. We find no reason to reject the prosecution version and therefore, under the above circumstances, we hold that the learned trial Judge was justified in convicting the appellant-accused. The appeal is, therefore, dismissed.
Index: Yes Website: Yes sra To
1.The II Additional Sessions Judge cum Additional Chief Judicial Magistrate, Dharmapuri at Krishnagiri.
2.-do- Thro' The Principal Sessions Judge, Dharmapuri at Krishnagiri.
3.The Judicial Magistrate No.1, Dharmapuri at Krishnagiri.
4.-do- Thro' The Chief Judicial Magistrate, Dharmapuri at Krishnagiri.
5.The Inspector of Police, Kaveripattinam Police Station, Kaveripattinam Taluk, Dharmapuri District.
6.The District Collector, Dharmapuri District.
7.The Director of General of Police, Madras-4.
8.The Superintendent, Central Prison, Vellore.
9.The Public Prosecutor, High Court, Madras.