Madras High Court
A.Ibrahim Sha vs State Rep.By on 12 July, 2010
Bench: M.Chockalingam, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/07/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY Crl.A.(MD).No.381 of 2009 A.Ibrahim Sha .. Appellant Vs State rep.by Inspector of Police, Jaihindpuram Police Station, Madurai. Cr.No.903 of 2008 .. Respondent PRAYER This criminal appeal has been preferred under Section 374 Cr.P.C as against the conviction under Section 302 IPC passed in S.C.No.44 of 2009 on the file of the Principal Sessions Court, Madurai, dated 30.09.2009. !For Appellant ... Mr.C.Vakeeswaran ^For Respondent ... Mr.Isaac Manuel Addl.Public Prosecutor :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.) This appeal challenges a judgement of the Principle Sessions Division, Madurai in S.C.No.44 of 2009 whereby the sole accused/appellant stood charged, tried and found guilty as per the charge of murder and awarded life imprisonment along with fine of Rs.2,000/- and default sentence.
2. The short facts necessary for the disposal of this appeal can be stated as follows:-
(i) The deceased was an auto driver at the Madurai railway junction. The accused was also an auto driver and having his auto at the Madurai railway junction. Equally, P.Ws.3, 6 and 9 were also auto drivers parking their autos in the particular place.
ii) The accused and the deceased have frequent quarrel in engaging the passengers for a period of three months and even they had scuffle in the past.
P.Ws.3, 6 and 9 used to hold panchayats and pacify them.
iii) On 17.09.2008 at about 1.00 p.m., there was a quarrel between the accused and the deceased and it was witnessed by P.Ws.3, 6 and 9 who intervened and pacified the same. At about 2.00 p.m. on the very same day, P.W.1 accompanied his brother, who was proceeding in the Muthu bridge, which was proceeding to Thirupparankundram. At about 2.00 p.m. on 17.09.2008, i.e. on the very same day, the accused/appellant who came in his auto, had stopped the same, got down and pulled the legs of the deceased and pushed him upside down the bridge with a height of 25 feet by uttering "you should not drive auto till my life time". It was witnessed by P.W.1, the brother of the deceased, and also P.Ws.3 and 9, the co-auto drivers. The accused/appellant immediately left the place of occurrence.
iv) P.W.1 proceeded to the respondent police and gave a complaint Ex.P1, to P.W.11, the Sub Inspector of Police. On the strength of the copy of Ex.P1, P.W.11 came to register a case in Cr.No.903 of 2008 under Section 302 IPC. The printed FIR Ex.P6 along with Ex.P.1, the complaint, was despatched to the Court which reached the Judicial Magistrate at about 6.30 p.m. on 17.09.2008
v) On the strength of Ex.P1, complaint, P.W.16, the Inspector of police, took up investigation, proceeded to the spot, made an inspection in the presence of witnesses and prepared an Observation Mahazar Ex.P3 and a rough sketch Ex.P13. Besides that he recovered blood stained earth and sample earth M.Os.1 and 2 respectively under a cover of mahazar Ex.P4. The investigator conducted inquest on the dead body of the deceased in the presence of the witnesses and prepared an inquest report, which was marked as Ex.P.14.
vi) Pending investigation, the accused was arrested on 17.09.2008 at 20.00 hrs, and he came forward to give a confessional statement voluntarily, and the same was recorded in the presence of witnesses. Pursuant to which, he has produced M.O.3, autorickshaw bearing registration No. TN59 J 1608, which was recovered under a cover of mahazar Ex.P5. He was sent for judicial remand.
vii) On receipt of the requisition Ex.P11, made by the investigator, P.W.15, the Doctor, conducted autopsy on the dead body of the deceased and issued a postmortem certificate, Ex.P12 opining that the deceased died out of multiple injuries sustained by him 18 to 24 hours prior to autopsy. Material objects recovered from the place of occurrence were subjected to chemical analysis by the forensic department on a requisition made by the investigating officer through the concerned Court. Following the same, the chemical analyst's report, Ex.P9, and Serologist's report, Ex.P10 were received by the Court.
viii) On completion of the investigation, the Investigating Officer has filed the final report. The case was committed to the court of sessions and necessary charges were framed.
ix) In order to substantiate the charges, at the time of trial, the prosecution examined 16 witnesses and relied on 14 exhibits and 6 material objects. On completion of the evidence on the side of the prosecution, the accused/appellant was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. Neither any witness was examined nor any document was marked on the side of the defence.
x) After hearing the arguments of the learned counsel and looking into the materials available, the trial court took the view that the prosecution has proved the case beyond reasonable doubt and hence, found the accused/appellant guilty and awarded the punishment as referred to above. Under these circumstances, this criminal appeal has arisen at the instance of the accused/appellant.
3. Advancing the arguments on behalf of the appellant, the learned counsel would submit that according to the prosecution, the occurrence has taken place at 2.00 p.m. on 17.09.2008, and P.Ws.1, 2, 3 and 9 were marched by the prosecution as occurrence witnesses, out of whom, P.W.2, was treated hostile by the prosecution. In so far as P.Ws.3 and 9 are concerned, they claimed to be eyewitnesses, but the evidence of P.W.1 could not be relied for any purpose. There are lot of inconsistencies found in the evidence of P.Ws.3 and 9. According to P.W.3, he was driving the auto and no passenger was inside. On the contrary, P.W.9 has stated that P.W.3 and himself were driving the autos with passengers and thus, it is highly doubtful whether P.Ws.3 and 9 could have gone together.
4. Added further, the learned counsel that P.W.1 has categorically deposed that at the time of occurrence there was a quarrel between the deceased and the accused, and P.Ws.3 and 9 had come there in their autos, got down and also separated them and immediately they left the place. Thus, from the evidence of P.W.1, P.Ws.3 and 9, could not have seen the occurrence at all. In so far as the evidence of P.W.1 is concerned, it should have been rejected by the trial Court for the reason that he was the brother of the deceased. Apart from that, occurrence has taken place at about 2.00 p.m. on 17.09.2008. At one stage P.W.1 has deposed that P.W.1 and the deceased were walking on the bridge and on the other stage, he has stated that he accompanied the deceased in his auto. Apart from that, according to him, he has given a complaint at 4.00 p.m. If really, P.W.1 had seen the occurrence at 2.00 p.m. as deposed by him, there was no need for him to wait till 4.00 p.m. and he could have gone to the police station immediately and thus there was a delay.
5. Added circumstance which was against the prosecution was the delay in placing the first information report in the hands of the judicial magistrate. The Judicial Magistrate received the first information report at 6.30 p.m. on 17.09.2008. The Judicial Magistrate's residence is situated within a short distance from the police station, and it would hardly take half an hour to cover the distance. This also would cast doubt on the prosecution case and all would go to show that nobody has witnessed the occurrence. After looking on the dead body, it would have passed in the mind of the investigator that the accused had a role to play, since there was a quarrel between them.
6. Added further, the learned counsel that the deceased had number of enemies which was evident from the evidence adduced. Under such circumstances, some one has committed the murder and not the accused and he is entitled for acquittal in view of the reasonable doubts which were raised before the trial Court and which are now raised.
7. Added further the learned counsel in the second line of his argument that even according to P.Ws.3 and 9, both the deceased and the appellant/accused were quarreling with each other at the railway junction with regard to the engagement of the passengers at about 1.00 p.m. and this occurrence is actually in continuation of the earlier incident. Apart from that, at the time of occurrence also, according to P.W.1 there was a quarrel and P.Ws.3 and 9 who were coming in their auto got down from the the same and separated them and thus, in that process the accused has acted so and thus, it was due to a sudden quarrel. Under such circumstances, the act of the accused cannot be stated to be intentional or premeditated and this has got to be considered by the Court. The learned counsel would add that it would not attract the penal provision of murder, but a culpable homicide not amounting to murder and this has got to be considered by the Court.
8. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions.
9. It is not in controversy that the dead body of Arumugam @ Mohammed Ali was found beneath the bridge which was proceeding to Thirupparankundram and P.W.16, the inspector of police, gave a requisition to the Government Hospital for conducting postmortem on the dead body of Arumugam @ Mohammed Ali. P.W.15, the postmortem doctor, had deposed before the Court that the deceased died out of the injuries sustained by him and gave Ex.P12, postmortem certificate. The fact that Arumugam @ Mohammed Ali died out of homicidal violence was never disputed by the appellant before the trial Court and here also. Hence, the trial Court was perfectly correct in recording so.
10. In order to substantiate that it was the accused/appellant who lifted the deceased and threw him from the top of the bridge with a height of 25 feet and as a result of which, he died on the spot, the prosecution examined P.Ws.1 to 3 and 9 as eye witnesses. It is true that P.W.2 has turned hostile and his evidence is not useful to the prosecution, but in the considered opinion of the Court, the evidence of P.Ws.1, 3 and 9 were available to the prosecution. Both the deceased and the appellant were quarreling with each other in the railway junction and they were actually separated and within a short span of time, according to P.W.1, he was proceeding with his brother on the bridge and at that time, the accused came in his auto, stopped the same, got down and immediately lifted the deceased and threw him down the bridge and thus, caused his death. In so far the evidence of P.W.1 is concerned, the Court is unable to notice any reason to disbelieve his evidence. So far as P.Ws.3 and 9 are concerned, the learned counsel brought to the notice of the Court that P.Ws.3 and 9 who came in their autos, stopped and separated the deceased and the appellant on the spot and left the place. Thus, though the evidence of P.Ws.3 and 9 could not be taken as an evidence for the incident of murder, but there is evidence available to the extent that P.Ws.3 and 9 have seen all the three persons at the place of occurrence namely P.W.1, the deceased and the appellant/accused. Thus, P.W.1 has categorically deposed that it was the accused who threw the deceased from the top of the bridge and caused his death. P.W.1 has immediately proceeded to the police station and gave a complaint under Ex.P1. A case came to be registered by the Sub Inspector of Police at 2.30 p.m. Now, the contention put-forth by the learned counsel for the appellant is that P.W.1 has categorically stated that he gave a complaint at 4.00 p.m. But, the sub inspector of police deposed that the complaint was given at 2.30 p.m. and a case came to be registered and the first information report was handed over to the police constable, who carried the same to the Magistrate, and even that constable was also examined. Hence, the Court is unable to agree with the contention now put forward by the learned counsel for the appellant.
11. Now, another contention put forward by the learned counsel is that the first information report has reached the Judicial Magistrate at about 6.30 p.m. and thus, there was a huge and inordinate delay. The Court is unable to agree with the said contention for the reason that the prosecution already came forward with an explanation through the Constable who carried the first information report that the Magistrate was not in his house and at that time, he went outside, and when he came back, the police constable handed over the first information report. Thus, though some delay is noticed, the delay has also been explained. This ocular testimony through P.W.1 actually stood fully corroborated by the medical evidence. Under such circumstances, the Court is of the considered opinion that the prosecution has proved the relevant fact that it was the accused/appellant who threw the deceased from the top of the bridge and caused his death.
12. The court is able to see some force in the second line of contention put forward by the learned counsel for the appellant. It is not in controversy that both the appellant and the deceased were auto drivers and P.Ws.3 and 9 were also auto drivers. All were parking their autos at the railway junction at Madurai. According to P.Ws.3 and 9, the deceased and the appellant used to often quarrel, and even on the very day, there was a quarrel between the deceased and the accused, and they were also separated at 1.00 p.m., and within a short span of time the occurrence has taken place. Added further, according to P.W.1, even at the place of occurrence also, there was a quarrel, and P.Ws.3 and 9 who came to the spot in the autos, have separated them and went away from the place of occurrence. All would go to show that there was a quarrel between the deceased and the appellant/accused, who were auto drivers, for a period of more than three months, and actually there was a quarrel between the deceased and the accused that had taken place even prior to the occurrence, and in that transaction, the accused /appellant has acted so. Thus, it is neither intentional nor premeditated, and this act of the accused would not attract the penal provision of murder. But, it is only a culpable homicide not amounting to murder. The Court is of the opinion that it could not be brought under Section 302 of the Code, but would attract the penal provision of Section 304 (Part I) IPC and awarding a punishment of seven years rigorous imprisonment would meet the ends of justice.
13. Accordingly, the conviction and the sentence of life imprisonment imposed by the trial Court on the accused/appellant under Section 302 IPC are set aside and instead, he is convicted under Section 304 (Part I) IPC and he is directed to suffer seven years rigorous imprisonment. The imprisonment already undergone by the accused/appellant shall be given set off. The fine amount imposed by the Trial Court under Section 302 IPC is ordered to be treated as one imposed under Section 304 (Part I) IPC.
14. The Criminal Appeal is disposed of accordingly.
jikr/sj To
1. The Principal Sessions, Court, Madurai.
2. The Inspector of Police, Sathankulam Police Station, Tuticorin District
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.