Madras High Court
Esakkiappan vs State Through on 18 November, 2019
Author: S.Vaidyanathan
Bench: S.Vaidyanathan, N.Anand Venkatesh
Crl.A.(MD) No.177 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.11.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
Crl.A.(MD)No.177 of 2018
Esakkiappan ... Appellant/ Accused
Vs.
State through
The Inspector of Police
Thisayanvillai Police Station
Tirunelveli District.
(Crime No.212 of 2014) ... Respondent/ Complainant
PRAYER: Criminal Appeal is filed under Sections 374(2) and 382 of the
Code of Criminal Procedure, to set aside the Judgment dated 26.08.2016
passed by the Principal Sessions Judge at Tirunelveli in S.C.No.112 of 2015.
For Appellant : Mr.M.S.Jeyakarthik
For Respondent : Mr.M.Chandrasekaran,
Additional Public Prosecutor
******
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Crl.A.(MD) No.177 of 2018
JUDGMENT
S.VAIDYANATHAN, J.
AND N.ANAND VENKATESH, J.
The present Criminal Appeal has been filed aggrieved by the judgment of the Principal Sessions Court, Tirunelveli made in S.C.No.112 of 2015 dated 26.08.2016, convicting the appellant for an offense under Section 302 of I.P.C. and sentencing him to undergo life imprisonment and to pay a fine of Rs.500/- in default of payment of fine, to undergo further period of six months rigorous imprisonment.
2. The case of the prosecution is that the appellant is a drunkard and as a result of the same, there was a matrimonial dispute and he had got separated from his wife and was living with his parents and brother and he used to regularly ask for money for consumption of alcohol. On 19.06.2014 at about 11:00 p.m., when the appellant was in an inebriated state, his mother is said to have chided him by saying that he is not going for any work and is regularly consuming alcohol and he is not even able to live with his wife. After this, the deceased, who is the mother of the appellant was 2/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018 lying on her bed on the pial of the house. At that time, the appellant is said to have taken a grinding stone, which weighs about 20 kgs (M.O.1) and had dropped it on the head of his mother and thereafter, he had ran away from the scene of occurrence.
3. The deceased was immediately taken to the Government Hospital, Tirunelveli at about 3:22 a.m. on 20.06.2014 and she was admitted as inpatient by the Doctor(P.W.8). When she was examined , the Doctor found that she had sustained very grievous injury in her head and she was in an unconscious state. The deceased ultimately died on the very same day at 6:30 a.m. Immediately, a communication (Ex.P.8) was sent to the police regarding the death of the deceased.
4. P.W.1, who is the father of the appellant and husband of the deceased, went before the Sub Inspector of Police, Thisayanvillai Police Station (P.W.12) and had given a complaint (Ex.P.1) at about 8:00 a.m. on 20.06.2014. An F.I.R. was registered in Crime No.212 of 2014 for the offence under Section 302 of I.P.C. and the F.I.R was marked as Ex.P.10. The express F.I.R was sent through the Constable (P.W.10) and he handed it over to the learned Judicial Magistrate, Cheranmahadevi at about 1:30 p.m. on the same day.
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5. The investigation was taken up by the Inspector of Police (P.W.14). He went to the scene of occurrence at about 9:00 a.m. on 20.06.2014 and he prepared the observation mahazar (Ex.P.13) and also collected the material objects (M.O.4 & M.O.5). He thereafter went to the Government Hospital, Tirunelveli and went to the mortuary and conducted the inquest over the body of the deceased in the presence of the Panchayatars and prepared the inquest report (Ex.P.16). He thereafter had made a requisition through the Constable (P.W.11) for conducting the postmortem. The Investigating Officer proceeded to record the statements of the witnesses under Section 161(3) of Cr.P.C.
6. The Investigating Officer arrested the appellant on the same day at about 4:30 p.m. and based on his voluntary confession made in the presence of the witness (P.W.7), the grinding stone (M.O.1) was recovered. The appellant was produced before the learned Judicial Magistrate and he was remanded to judicial custody.
7. The Investigating Officer had sent all the material objects under form 95 to the learned Judicial Magistrate Court with a requisition to send the same to the Forensic Department. The Investigating Officer examined the Doctor, who conducted the postmortem and he also collected the 4/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018 medical report (Ex.P.20) as well as the postmortem report (Ex.P.12). On completion of the investigation, he filed the final report on 18.09.2014 before the Judicial Magistrate Court, Nanguneri.
8. The case was committed to the file of the Principal Sessions Judge, Tiruvnelveli and the same was taken on file in S.C.No.112 of 2015 and the Court framed charges against the appellant under Section 302 of I.P.C. The prosecution examined P.W.1 to P.W.14 and marked exhibits Ex.P.1 to Ex.P. 20 and exhibited M.O.1 to M.O.5. The defense had examined D.W.1, who is the doctor, who had given treatment to the deceased and handed over the Accident Register (Ex.D1) which was also marked.
9. The appellant was questioned under Section 313 (1) (b) of Cr.P.C. by putting all the incriminating materials collected during the course of trial and he had denied the same as false.
10. The trial Court after considering the facts and circumstances of the case and after analyzing the oral and documentary evidence came to a conclusion that the prosecution has proved the case beyond reasonable doubts and proceeded to convict and sentence the appellant for the offence under Section 302 of I.P.C.
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11. The learned counsel for the appellant submitted that even though prosecution had examined P.W.1 and P.W.2, who are the father and brother of the appellant as eye-witnesses, they could not have seen the occurrence and there is a serious discrepancy in their evidence. The learned counsel submitted that P.W.1 had categorically admitted in the cross examination that he was tutored by the police before he came to the Court for deposing his evidence. The learned counsel submitted that even though as per the case of the prosecution, the incident had taken place at 11:00 p.m. on 19.06.2014, the evidence of P.W.2 shows that the occurrence had taken place at 1:00 a.m. on 20.06.2014. Therefore, the time at which the incident had taken place itself becomes questionable. The learned counsel further submitted that there was a delay in the registration of F.I.R. The death intimation is said to have been made at about 6:30 a.m. on 20.06.2014. However, the F.I.R. itself came to be registered based on the complaint given by P.W.1 only at 8:00 a.m. and there is absolutely no explanation for this delay.
12. The learned counsel further submitted that the prosecution had intentionally concealed the A.R. report and also did not examine the A.R. Doctor. Thereafter, the A.R. Doctor was examined on the side of the defense. The A.R. copy that was marked as D.1 which clearly shows that 6/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018 P.W.2, who had taken the deceased to the Hospital was not even able to tell the Doctor as to the manner in which the incident had taken place and the weapon that was used for attacking the deceased. That apart, the A.R.Doctor, who was examined as D.W.1, had stated that such an injury can be caused even if the deceased had fallen down.
13. The learned counsel for the appellant further submitted that the injuries as found in the A.R. copy is completely different from the injuries that are found in the postmortem certificate which has been marked as Ex.P.12.
14. The learned counsel for the petitioner concluded his arguments by submitting that even if it is taken that the case of the prosecution is proved, the facts of the present case will fall under exception (1) of Section 300 of I.P.C. Since there was sustained provocation for a long time which ultimately ended up with the incident, after the deceased had chided the appellant. Therefore, the learned counsel submitted that the appellant is not liable to be convicted and punished for the offence under Section 302 of IPC and he can be punished only under Section 304 of IPC. 7/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018
15. Per contra, Mr.M.Chandrasekaran, learned Additional Public Prosecutor appearing on behalf of the respondent police submitted that the incident has been clearly explained by P.W.1 and P.W.2. who are the appellant's own brother and father. The learned counsel submitted that the injury was caused to the deceased when a grinding stone (M.O.1) was dropped on her head by the appellant and the evidence of the postmortem Doctor (Ex.P.W.13) and the postmortem certificate, marked as Ex.P.12 clearly corroborates the version given by P.W.1 and P.W.2.
16. The learned counsel further submitted that the deceased died in the Hospital at about 6:30 a.m. and thereafter, P.W.1 had come to the Police Station and gave a complaint to P.W.12. based on which, an F.I.R came to be registered at about 8:00 a.m. The learned counsel submitted that the express F.I.R. had reached by 1:30 p.m. on the same day. Therefore, there is absolutely no delay in this case and the so-called discrepancy that has been pointed out by the learned counsel for the appellant does not in any way discredit the evidence of P.W.1 and P.W.2.
17. The learned Additional Public Prosecutor concluded his arguments by submitting that the prosecution has proved the case beyond 8/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018 reasonable doubts and there are absolutely no grounds to interfere with the judgment of the trial Court.
18. This Court has carefully considered the submissions of the learned counsel appearing on either side and the evidence available on record.
19. This is a case of matricide where the appellant is said to have killed his mother by dropping a grinding stone weighing about 20 kgs in her head. The case of the prosecution is that the appellant had a matrimonial dispute with his wife and his wife got separated from him and therefore, he is supported by his parents. That apart, the appellant was an alcoholic and he used to pester his parents for money. On that fateful day, he had asked for money from the deceased, who is his mother and she had abused him by saying that he is not doing any work and he keeps drinking and he is also not able to live with his wife. Thereafter, when she was sleeping at the pial at her house, the appellant is said to have dropped the grinding stone on her head.
20. The prosecution had examined P.W.1 and P.W.2 as eye witnesses in this case. P.W.1 is the father of the appellant. He has clearly stated in his 9/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018 evidence about the manner in which the incident had taken place. The relevant portion in the evidence of P.W.1 is extracted hereunder:-
“M$h; vjphpf;Fk; vd; kidtpfF ; k; rz;il ele;jJ/ rz;il ele;jJk;
ehDk; vd;Dila ,isakfd; ,rf;fpKj;Jt[k; rz;ilia tpyf;fptpl;nlhk;/ mjd;gpwF ,ut[[ 11/00 kzpastpy vd; kidtp tPl;oy; gLj;jpUe;jnghJ M $h; vjphp 20 fpnyh vila[s;s jpUitf;fy;iy J}f;fp vd; kidtpapd; jiyapy; nghl;LtplL ; me;j jpUitf;fy;iy vjphp vLj;Jf; bfhz;L Xotpl;lhh;/”
21. The learned counsel appearing for the appellant wants to discredit the evidence of this witness on the basis of the statement made by him during the cross examination. In the cross examination, P.W.1 had stated that before he came to the Court, he was briefed by the police regarding the case and he was told what to say in the case. The incident in this case had taken place on 19.06.2014 and P.W.1, who is aged about 75 years had come before this Court after nearly a year on 13.07.2015 to give evidence. It is a regular practice where the witnesses are briefed about the statements given by them to the police and there is nothing unnatural that had happened in this case.
22.The interview of a witness before they get into the box was considered by this Court in Bala and others vs. State reported in 10/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018 (2014) 1 MLJ (Crl) 385 and this Court has held as follows:-
“In Hukam Singh and others vs. State of Rajasthan [(2000) 7 SCC 490], para 14 reads as under:
"14. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor's duty to the Court may require him to produce witnesses from the latter category, also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip that witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness beforehand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in court."
It may be appropriate to refer to certain provisions in the Karnataka Police Manual on this subject.
"CHAPTER XXXIX – PROSECUTION OF CASES IN COURTS 1569(5) - It is essential that before the trial or inquiry commences, the Prosecutor in-charge of the case must prepare his case and know what his witnesses are going to state in the court. He should, therefore, interview each witness well in time and ascertain from him the facts to which he would testify in the court and instruct him how he should behave in the court. He should be cautioned to keep his temper, to answer questions distinctly and in a natural manner, 11/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018 and not to volunteer more information than is asked of him. A timid or nervous witness would need encouragement, while a self-opinionated, loquacious one must be warned against making his answers unnecessarily long or speaking about matters regarding which he has not been questioned."
Prosecutors think that it is a taboo for them to interview witnesses. This outlandish attitude ought to be effaced. The prosecutor is a responsible public servant whose duty is to adduce the best evidence in a fair manner and aid the Court of law to arrive at a just conclusion. He is a representative of the State and is a bridge between the police and the Court. He owes a public duty. Therefore, it cannot be presumed that he will tutor witnesses. Such an inference will go against the presumption that officials will act in accordance with law and not in violation thereof. However unpalatable, it is a fact that the common man shudders on receipt of summons from a Court. The entire atmosphere is surreal and scary to him that he would require to be given sufficient confidence to depose in his own simple dialect. An interview by the Public Prosecutor is an opportunity to instill confidence in the mind of witnesses to speak the truth fearlessly. We are sure that had the trial court Public Prosecutor interviewed these witnesses who are rustic persons from the same village, they would have in their own native style unfolded the truth thereby helping the Court to come to a just decision.” 12/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018
23. It is important to see what P.W.1 had stated in his cross examination regarding the incident. He had maintained the same stand throughout the cross examination and he in fact says that, after the grinding stone was dropped in the face of the deceased, the face of the deceased completely went out of shape. This witness is the father of the appellant and there is no need for him to utter falsehood and unnecessarily implicate the appellant in this case.
24. The next witness, whose evidence becomes important in this case is the brother of the appellant, namely P.W.2. The relevant portion of his evidence is extracted hereunder:
“19.06.2014k; Njjpad;W ,uT 11.00 kzpastpy; M[h; vjphp vq;fs; tPl;bw;F te;J vd; mg;ghit ghh;j;J cd;nghz;lhl;b ,d;idNahL nrj;Jtpl;lhs; vd;W vq;fs; tPl;L [d;dy; gf;fj;jpy; te;J M[h; vjphp nrhd;dhh;. vd; mg;ghtpw;F rhpahf fhJ Nfl;fhJ. mjdhy; vd; mg;ghtplk; ehd; M[h; vjphp nrhd;dij nrhd;Ndd;. clNd ehDk; vdJ mg;ghTk; vOe;J fjit jpwe;J ghh;f;fg;NghNdhk;. mg;nghOJ vd; mk;kh vq;fs; tPl;L jpz;izapy; gLj;jpUe;jJ. mg;nghOJ M[h; vjphp vd; mk;kh jiyf;F Nky; fy;iy itj;Jf;nfhz;L epd;whh;. mij ghh;j;j ehd; fy;iy NghlhNj vd;W ehd; nrhd;dTld; M[h; vjphp me;j fy;iy vd; mk;kh jiy kPJ Nghl;lhh;. vd; mk;kh mjdhy; uj;j nts;sj;jpy; fple;jhh;.”
25. A reading of the entire cross examination does not in any way discredit the evidence of this witness. He has clearly maintained his stand. 13/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018 This witness is the brother of the appellant and there was no necessity for this witness to utter falsehood and implicate the appellant in this case.
26. The evidence of P.W.1 and P.W.2 inspires the confidence of this Court and therefore, this Court is of the considered view that no more corroboration is required to prove the case of the prosecution.
27. The other important witness is the Doctor (P.W.8), who had given treatment to the deceased at the Government Hospital, Tirunelveli. The Doctor states that the deceased was brought at 3:22 a.m. on 20.06.2014 and she was admitted as inpatient. She found that the deceased had sustained grievous injuries in her head and she was in an unconscious state and ultimately, the deceased had died at about 6:30 a.m.
28. It will also be relevant to rely upon the evidence of D.W.1, who was the A.R. Doctor examined on the side of the appellant. Even this Doctor states that the deceased was brought to the Hospital at about 1:30 a.m. on 20.06.2014 by P.W.2. The deceased was found in an unconscious state and the injuries that were apparently found was also noted in the A.R. copy which was marked as Ex.D.1. The reference to the A.R.copy which was marked as Ex.D.1 shows that the deceased was admitted in the Hospital by 14/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018 P.W.2 and he had specifically stated that the assault was committed by a known person.
29. The learned counsel for the appellant has relied upon the A.R. copy and had stated that it is mentioned in the A.R. copy that the weapon is unknown. Here is a case where a grinding stone has been dropped on the head of the deceased and the mother was in a very serious condition and was rushed to the Hospital. It cannot be expected that every detail will be given in the Hospital in such a tense moment and what is important from this A.R. copy is the fact that the deceased was taken to the Hospital by P.W.2 and the injuries that were noted were found in the head of the deceased and she was in an unconscious state. This Doctor had examined the deceased at about 1:30 a.m. and the subsequent doctor(P.W.8) had examined the deceased at 3:22 a.m. and even at that point of time, the deceased continued to be in an unconscious state.
30. It will also be relevant to rely upon the evidence of the postmortem doctor. The Postmortem Doctor was examined as P.W.13 in this case. He had categorically deposed during the examination that the nature of the injuries that has been recorded by him in the postmortem report (Ex.P.12) is capable of being sustained if the deceased had been attacked 15/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018 with the grinding stone in her head and at this juncture, it will be relevant to extract the injuries as found in the postmortem report.
“Antemortem injures: 1) 4 cm long sutured wound seen over right eye brow area and right frontal region. On removal of sutures, it was skull bone deep lacerated wound. On Dissection of Scalp, Skull and Dura: Contusions of scalp 10X8 cm seen over right temporal region and 8X2 cm seen over left temporo occipital region. Depressed fracture of size 6X5 cm seen over right fronto temporal bone. Fissured fracture of vault of Skull of length 5cm seen in left temporal bone. Diffuse subdural and subarachnoid haemorrhages seen over right temporo parietal lobes, left parietal lobe and both cerebellar hemispheres. Fracture of base of skull of length 18 cm seen in right anterior cranial fossa, pituitary fossa and left middle cranial fossa communicating with the above said depressed fracture and fissured fracture.
Other Findings: Peritoneal & Pleural cavities- nil specific. Heart-appears to be normal. Coronaries – patent. Hyoid Bone was Intact. Stomach- contains about 200 ml of altered blood, no specific smell or mucosa-pale. Liver, Lungs, Spleen and Kidneys – c/s pale. Small Intestine – contains about 10 ml of bile stained fluid, no specific smell & mucosa – pale. Urinary bladder – empty. Brain – described.
Opinion as to the cause of death: The deceased would appear to have died of cranio cerebral injuries. ” 16/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018
31. It is seen from the postmortem certificate that the deceased had died due to cranio cerebral injury and the injuries are very serious. The evidence of the postmortem doctor, who was examined as P.W.13 and the postmortem certificate which was marked as Ex.P.12, clearly corroborates the version given by P.W.1 and P.W.2 regarding the incident.
32. The last submission that was made by the learned counsel for the appellant is that the incident had taken place only due to sustained provocation and therefore, the facts of the present case will fall under exception (1) of Section 300 of I.P.C.
33. This Court is not in agreement with the said submission. This Court cannot be assessing this case on misplaced sympathy. It is seen that the appellant was a drunkard and he was depending upon his parents for money and he was pestering his parents for money in order to drink daily. This has been spoken by P.W.1 and P.W.2. The reaction of the mother towards the appellant was very natural. She had questioned the attitude of the appellant and had chided him stating that he is not going to any work and he keeps drinking daily and he is not even able to live with his wife. This statement made by the mother can never be taken to be a 17/20 http://www.judis.nic.in Crl.A.(MD) No.177 of 2018 provocation. The incident did not take place immediately. After, nearly an hour, when the deceased mother was sleeping on the pial of the house, the appellant had taken the grinding stone (M.O.1) weighing 24.5 kgs and dropped it on the head of the mother. A person's drinking habit can never be an excuse to pick up a quarrel and eventually commit such a heinous crime.
34. In this case, the so-called provocation was as a result of the attitude of the appellant himself and the fact that he had dropped the grinding stone after nearly an hour after the quarrel that he had with his mother, shows that there is no grave and sustained provocation in this case. The sustained provocation is only an expression which was created by means of judicial pronouncements. If in case, the person is not given money for drinking and as a result of which, he proceeds to kill someone, no sympathy can be shown by any Court and the so-called provocation that is claimed on the side of the appellant has to be outright rejected. The appellant in this case by dropping the grinding stone on the head of the deceased, who is his mother, had brought the life of the deceased to a grinding halt.
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35. This Court does not find any merits in this Appeal and in the considered view of this Court, the prosecution has proved the case beyond reasonable doubts. The trial Court has perfectly analyzed the entire oral and documentary evidence and there are absolutely no grounds to interfere with the judgment of the trial Court.
36. Accordingly, this Criminal Appeal stands dismissed.
[S.V.N., J.] & [N.A.V., J.]
18.11.2019
Index : Yes
Internet : Yes
sts
To
1.The Principal Sessions Judge,
Tirunelveli.
2. The Inspector of Police
Thisayanvillai Police Station
Tirunelveli District.
(Crime No.212 of 2014)
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
19/20
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Crl.A.(MD) No.177 of 2018
S.VAIDYANATHAN, J.
AND
N.ANAND VENKATESH, J.
sts
Judgment made in
Crl.A.(MD)No.177 of 2018
Dated:
18.11.2019
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