Madras High Court
Abraham vs The State Rep. By on 6 August, 2018
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.08.2018
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Criminal Appeal (MD) No.64 of 2007
Abraham : Appellant/Sole Accused
Vs.
The State rep. by
The Inspector of Police,
Kovilpatti East Police Station,
Thoothukudi District.
(Crime No.629 of 2006). : Respondent/Complainant
PRAYER: Criminal Appeal is filed under Section 374 of the Code of Criminal
Procedure against the judgment passed by the learned Additional District and
Sessions Judge -cum- Fast Track Court No.II, Thoothukudi, Thoothukudi
District, in S.C.No.304 of 2006, dated 10.11.2006.
!For Appellant : Dr.N.Shunmugavel,
Legal Aid Counsel
^For Respondent : Mr.S.Chandrasekar,
Additional Public Prosecutor
:JUDGMENT
This appeal is directed against the judgment dated 10.11.2006, in S.C.No.304 of 2006, on the file of the learned Additional District and Sessions Judge -cum- Fast Track Court No.II, Thoothukudi, Thoothukudi District.
2. In view of the long pendency of the appeal, a warrant was issued by this Court, by order dated 23.06.2018, to secure the accused viz., Abraham, Male, aged about 37 years, S/o.Muthiah, Sankaralingapuram, Kovilpatti, Thoothukudi District and produce before this Court on 28.07.2018. By order dated 28.07.2018, time for securing the accused was extended till 10.08.2018.
3. Today, when the matter was taken up for hearing by way of additional list, the respondent/Inspector of Police, Kovilpatti East Police Station, Thoothukudi District, produced the accused before this Court.
4. On production of the accused, One Dr.N.Shunmugavel, learned counsel, is appointed as Legal Aid Counsel to argue the appeal on behalf of the accused and this Court has furnished all the copies to the Legal Aid Counsel and after giving an opportunity, this matter is taken up at 03.30 p.m., for arguments.
5. The brief facts of the prosecution case are as follows:
(i) The deceased-Grace Mary is the wife of the accused. P.W.2-Nesammal and P.W.3-Vedhanayagam are the parents of the deceased. The accused and his wife were residing at Sankaralingapurasm, Kovilpatti, at the relevant point of time. P.W.2-Nesammal and P.W.3-Vedhanayagam went to the accused place on 30.10.2006 to meet their daughter. After food, they were taking rest outside the house. Thereafter, on 31.10.2006, at about 05.00 a.m., on hearing the hue and cry of the deceased, P.W.2 and P.W.3 woke up and saw that the accused was sitting on the deceased and also stabbed her with scissors on her right side chest. Immediately, on seeing them, the accused ran away from the house with scissors (M.O.1).
(ii) P.W.1-Arunachala Reddiar was the Village Administrative Officer. The accused at about 07.00 a.m. on 31.10.2006 appeared before P.W.1 with M.O.1-bloodstained scissors and confessed the crime. P.W.1 has recorded the extra-judicial confession (Ex.P.1) of the accused and prepared a report (Ex.P.2) and handed over the same with M.O.1-Scissors to the Sub-Inspector of Police, Kovilpatti East Police Station. Thereafter, P.W.1 accompanied the Investigating Officer to the place of occurrence and the Investigating Officer prepared the Observation Mahazar-Ex.P.3 and M.O.2, M.O.3, M.O.4 and M.O.5 were also seized in his presence by the Investigating Officer under Ex.P.4-Athatchi.
(iii) Veeralakshmi (P.W.4) is the landlord of the house where the occurrence took place. She has also seen the accused leaving the house with bloodstained Scissors. Mary (P.W.5), who is the neighbour of the accused, has also seen the accused leaving the house with scissors.
(iv) Dr.Venkatesan (P.W.9), the Medical Officer, attached to the Government Hospital, Kovilpatti, conducted autopsy over the dead body and found the following injuries:
"External injuries: (i) A stab wound of 2.5. x 1 cm x 5 cm below right nipple; (ii) A stab wound of 2.5 x 1 x 6 cm over the 11th intercostal space in midclavicular line left side. Dental formula 8/8--8/8. A fracture present over root of nose c frothy bloody secretion from nose. On opening the thorax a stab wound of 2.5. x 1 cm x 2 cm in the middle lobe of right and c penetration into the right dome of diaphragm. Heart pale & empty. Neck - Hyoid bone intact. On opening the abdomen liver pale, a stab wound of 2.5. x 1 x 2 cm over anterosuperior surface of liver present. A stab wound of 2.5 x. 2 x 2 cm over anterosuperior surface of spleen present. Pancreas, kidney, intestines pale. Bladder empty uterus empty. On opening the skull, skull bones intact, Membranes intact Brain pale."
On conclusion of the Post-mortem, he issued the Post-mortem Certificate (Ex.P.13) and opined that the deceased would appear to have died of haemorrhage and shock due to the injuries caused on her body.
(v) P.W.11-Tmt.Rohini, Judicial Magistrate No.2, Kovilpatti, recorded 164 Cr.P.C., statement of P.W.2, P.W.3 and P.W.4.
(vi) P.W.13-Thillai Nagarajan, the Sub-Inspector of Police, Kovilpatti East Police Station, received complaint from P.W.1 and registered a case in Crime No.629 of 2006 under Section 302 of the Indian Penal Code under Ex.P.18-printed First Information Report and handed over the same to the Court concerned through P.W.12. P.W.14, Investigating Officer took up the case for investigation and conducted investigation and went to the place of occurrence and seized the material objects and finally, laid final report against the accused.
(vii) Based on the evidence and materials, the Trial Court has found the accused guilty under Section 304(i) of the Indian Penal Code and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment. Aggrieved over the same, the accused is before this Court.
6. Heard both sides.
7. It is the contention of the learned counsel for the accused that P.W.2 and P.W.3, who were the parents of the deceased, are interested witness. Their evidence is highly unbelievable and unreliable. Their presence itself is doubted. Further, there are certain inconsistencies and discrepancies in the evidence relied on by the prosecution. The Trial Court has not appreciated the evidence properly, it is contended.
8. The learned Additional Public Prosecutor submitted that admittedly the accused is the husband of the deceased. Both of them were residing together. The occurrence took place in a dwelling house and the wife was seriously injured and immediately the accused also went to the Village Administrative Officer and gave an extra-judicial confession with the bloodstained weapon. Further, there is no explanation from the accused as to what had transpired inside the house. P.W.2 and P.W.3 were the eye witnesses and P.W.4 and P.W.5 have also spoken about the occurrence. Hence, it is the contention of the learned Additional Public Prosecutor that it is a clear case of murder falling within Section 302 of the Indian Penal Code. However, the Trial Court, taking into consideration of some judgments, has shown leniency to the accused, by converting the offence into one under Section 304(i) of the Indian Penal Code. Hence, he prays for dismissal of the appeal.
9. I have perused the materials placed before this Court.
10. It is not in dispute that the deceased is the wife of the accused. Both of them were residing together in the same house at the relevant point of time. Ex.P.1-extra-judicial confession given by the accused does not suffer from infirmities. In fact, the accused rushed to the Village Administrative Officer with bloodstained scissors (M.O.1), which was used for causing injuries on his wife and gave confession to the Village Administrative Officer (P.W.1). It is further to be noted that P.W.4 and P.W.5 have seen the accused leaving the house with the bloodstained scissors (M.O.1) and P.W.2 and P.W.3, who are the parents of the deceased, in their evidence, have clearly indicated the fact that on 30.10.2006, they came to their daughter's house and on 31.10.2006, in the early morning at 05.00 a.m., the accused caused stab injuries on the right side chest of their daughter and left the place. The evidence of P.Ws. 2, 3, 4 and 5 have clinchingly established the fact that it is the accused who only caused the injuries on his wife in the dwelling house and the Medical Officer clearly established the factum of homicidal violence and the death was due to homicidal. It is curious to note that it is not the case of the accused that no such occurrence whatsoever took place in the house. Admittedly, the accused was residing with his wife and the wife died in his house. Thus, the entire burden lies on the accused to come out with an explanation as to what had transpired and those facts are exclusively within the knowledge of the accused. It is also relevant to note that the accused also immediately after the occurrence went to the Village Administrative Officer (P.W.1) and confessed besides handing over M.O.1-the bloodstained scissors. The above conduct of the accused also assumes significance under Section 8 of the Indian Evidence Act, 1872.
11. Therefore, from the above evidence available on record, the prosecution has clearly established the guilt of the accused. The Trial Court, however, taking into consideration of the previous quarrel between the husband and wife, has converted the offence from 302 IPC into 304(i) IPC. In fact, in my considered view, the learned Trial Judge erred in awarding the lesser punishment. In fact, the entire evidence clearly shows that this is a clear case of murder and it falls within the ambit of Section 300 IPC and not under Section 299 IPC. However, the Trial Court has modified the sentence under Section 304(i) IPC and awarded ten years rigorous imprisonment. Though such a finding is not legally sustainable, the prosecution also slept over all these years and they have not even filed any appeal challenging the finding of the Trial Court. Yet another circumstance also to be noted is that even during the questioning under charge, while the charges are framed, the accused has pleaded guilty. However, the Trial Court directed the prosecution to examine the witnesses and finally, found the accused guilty under Section 304(i) IPC. However, on over all analysis of the entire evidence, this Court does not find any circumstance to hold that the accused is not found guilty. In view of the fact that the prosecution has not not filed any appeal, this Court has no other option except to confirm the judgment of the Trial Court.
12. In the result, this Criminal Appeal is dismissed and the conviction under Section 304(i) of the Indian Penal Code and sentence imposed on the accused to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment, by the learned Additional District and Sessions Judge -cum- Fast Track Court No.II, Thoothukudi, Thoothukudi District, in S.C.No.304 of 2006, dated 10.11.2006, are, hereby, confirmed. The respondent police is directed to secure the accused viz., Abraham, Male, aged about 37 years, S/o.Muthiah, Sankaralingapuram, Kovilpatti, Thoothukudi District, to custody, to undergo the remaining period of sentence. The period of sentence already undergone by the accused is ordered to be set off under Section 428 of the Code of Criminal Procedure. Bail bond executed by the appellant, if any, shall stand cancelled.
13. The Legal Services Committee, attached to the Madurai Bench of Madras High Court, Madurai, has to pay the fees as per the entitlement, to Dr.N.Shanmugavel, Legal Aid Counsel.
To
1.The Additional District and Sessions Judge -cum- Fast Track Court No.II, Thoothukudi, Thoothukudi District,
2.The Inspector of Police, Kovilpatti East Police Station, Thoothukudi District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
.