Madras High Court
Murugesan @ Bandari vs State Of Tamil Nadu, Rep. By Inspector Of ... on 25 January, 2007
JUDGMENT M. Jeyapaul, J.
1. The accused, who was convicted for offence under Section 323 IPC (2 counts) and sentenced to pay fine of Rs. 1000/= with default sentence and convicted for offence under Section 302 IPC and sentenced to undergo life imprisonment and pay fine of Rs. 10,000/= with default sentence, prefers this appeal.
2. Charge as against the appellant is that on 7.7.2002, at about 7.30 pm, he came to the house of his mother in law Unnamalai and attacked not only his mother in law Unnamalai, but also, his sister-in-law Chandra with a firewood and caused simple injuries and thereby he committed an offence punishable under Section 323 IPC (2 counts) and during the course of same transaction, he attacked his brother-in-law Ashok alias Ashokan at the time when he intervened and as a result of which, the said Ashok succumbed to his injuries in the Government Hospital, Chennai and thereby he committed an offence punishable under Section 302 IPC.
3. On the side of the prosecution, as many as 14 witnesses were examined besides marking 20 documents and 7 Material Objects.
4. The sum and substance of the case of prosecution, as unfolded by the witnesses examined on their side, is as follows:
The accused is the son-in-law of Unnamalai, PW1. Chandra, PW2 and Krishnamurthy, PW3 are the sister-in-law and brother-in-law respectively of the accused. About four and a half years prior to the occurrence, the accused got married Vediammal, daughter of PW1. The accused had developed illicit intimacy with many women. He had developed extra marital relationship with one Jaya and Mallika. On account of that, frequent quarrel erupted between Vediammal and the accused. About 1-1/2 years prior to the occurrence, the accused left Vediammal in the lurch and had been to Coimbatore with one Jaya to eke out his livelihood. A day prior to the occurrence, the accused came down to the village. On 7.7.2002 at about 7.00 pm, the accused came to the house of PW1 and asked his wife Vediammal as to why she had not lighted up lamp in the house during night. Chandra, PW2, intervened and asked the accused, who had had not shown any interest in taking care her sister Vediammal, to mind his business. The accused beat PW2 first with hand and thereafter with a firewood. As the husband of PW1 emerged out of his house on seeing the accused beating PW2, PW1 and PW2 put him inside the house and locked from outside sensing some trouble. The accused, thereafter, attacked PW1 with the firewood, M.O.1 and caused injury. Ashok, son of PW1, who was reading some book inside the house of his grandmother along with his brother Krishnamurthy, PW3, on seeing his mother receiving attack from the accused, intervened. The accused attacked him indiscriminately on his head, chest and thigh with the firewood, M.O.1.
5. The injured Ashok was taken to Government Hospital, Tiruvannamalai by the neighbour Sivakumar. Dr.Kuppuraj, PW6 admitted him for treatment on 7.7.2002 at about 8.l5 pm and he found contusions over the forehead and chest, laceration over the left foot and vertex of scalp and abrasion over right foot. He issued copy of accident register, Ex.P6 detailing the injuries sustained by PW1 and thereafter, the injured Ashok was referred to Government Hospital, Pondicherry. On the very same day, at about 9.45 pm, Unnamalai, PW1 was brought by her relative Rajalakshmi for treatment. PW6 admitted her to Hospital for treatment. He found a lacerated injury over left forehead and a contusion on the forehead. He has opined in the copy of the accident register, Ex.P7 that both the injuries were simple in nature. PW6 admitted Chandra, PW2 at about 4.45 am on 8.7.2002 and gave treatment to her. PW2 was brought by his sister Vediammal to the hospital for treatment. PW6 found a contusion over her right scapular region and a contusion over the mid back. In the copy of the accident register (Ex.P8), PW6 expressed his opinion that those two injuries were simple in nature. P.Ws.1 and 2 have stated before PW6 that a known person attacked them with a stick and caused the injuries whereas the injured Ashok has informed him that a known person attacked him, but the weapon of offence was not known to him.
6. Mr.Rajasekaran, Sub Inspector of Police, PW11 received communication at about 1.30 am on 8.7.2002 about the admission of the injured to Government Hospital, Tiruvannamalai. He rushed to the said Hospital at about 2.15 am and he was informed that the injured Ashok and Unnamalai had been taken to Government Hospital, Pondicherry. He proceeded to the said Hospital where he was informed that they were taken to Government General Hospital, Chennai. Having received such information, he came down to Government General Hospital, Chennai at about 11.00 am on 8.7.2002 and recorded the statement, Ex.P1 from Unnamalai, PW1. He arrived at the police station at about 4.00 pm on the same day and registered a case in Crime No. 358 of 2002 under Sections 323 and 307 IPC and prepared printed FIR, Ex.P15 and despatched the same to the learned Judicial Magistrate.
7. Unnamalai, PW1 and Chandra, PW2, injured witnesses in this case have spoken to the extra marital relationship the accused had developed with some women, his trip to Coimbatore leaving his wife in the lurch and the attack launched by him not only on P.Ws.1 and 2 but also on the deceased Ashok which culminated in his death. Krishnamurthy, PW3, son of PW1 has also deposed to the occurrence before the Trial Court.
8. The Head Constable, Vijayakumar, PW9 was entrusted with the printed FIR for transmitting the same to the learned Judicial Magistrate.
9. The Inspector of Police, Prabakaran, PW13, took up the case for investigation at about 5.00 pm on 8.7.2002 and rushed to the scene of occurrence and prepared observation mahazar, Ex.P2 in the presence of Kannayiram, PW4. He also drew rough sketch, Ex.P18 reflecting the scene of occurrence. He recovered the blood stained earth, M.O.2 and sample earth, M.O.3 from the scene of occurrence under the cover of mahazar, Ex.P3. He received intimation from the Government General Hospital, Chennai at about 6.15 pm on the said day that the injured Ashok passed away. Therefore, he altered the case to one under Section 302 IPC and prepared the altered express report, Ex.P19 and despatched the same to the learned Judicial Magistrate II, Tiruvannamalai. He examined the occurrence witnesses and recorded their statements.
10. On 9.7.2002, between 7.00 am and 11.00 am, he held inquest on the dead body of Ashok in the presence of witnesses and Panchayatdars and prepared inquest report, Ex.P20. The dead body was entrusted to the Head Constable, Sundaresan, PW10 for the purpose of handing over the dead body to the post mortem Doctor.
11. On the basis of the request received from PW13 through PW10, Dr.Selvakumar (PW12) commenced the post mortem examination on the dead body of Ashok at about 2.05 pm on 9.7.2002. He found the following external and injuries and other symptoms on the dead body of Ashok:
INJURIES:
1. Vertical sutured wound 3.5 cm long seen over left parietal region of scalp 2 cm outer to the midline. On removal of sutures the margins are irregular and bone deep.
2. Vertical sutured wound 4 cm long seen over back of head in the left parietal region of scalp 2 cm behind the injury No. 1.
On removal of sutures the margins are irregular and bone deep.
3. Three small lacerations seen over the dorsal surface of 1st, 2nd and 3rd toe of left foot measuring 1.5x1x0.5 cm, 1x0.5x0.5 cm and 0.5x0.5x0.3 cm respectively.
4. On dissection of head: Dark red contusion 14x11x0.5 cm seen over both frontal, left parietal, left temporal and occipital regions of scalp.
Linear fissured fracture 16 cm long seen extending from the center of right side orbital margin to the left parietal bone.
Linear fissured fracture 14 cm long seen in the left parietal bone below the injury No. 2. Fracture line extends further upto the right parietal bone.
Sub dural haematoma 9x7x0.5 cm seen over left side frontal, left temporal and left parietal regions of brain.
Diffuse sub dural and sub arachnoid haemorrhage seen all over left cerebral hemisphere.
Ventricles filled with blood stained fluid.
HEART: Chambers contain fluid blood. Coronaries patent.
LUNGS: Congested.
HYOID BONE: Intact.
STOMACH: Contain 30 gms of partly digested rice particles. No definite smell. Mucosa-nil abnormal.
BLADDER: Empty.
All other internal organs were found congested.
and opined in the post mortem certificate, Ex.P6 that the deceased Ashok died of head injuries.
12. On 11.7.2002 at about 9.00 am, the accused was arrested by PW13 near Tiruvannamalai Ajalurpet Railway gate in the presence of the Village Administrative Officer, Mrs. Sarojini, PW5 and recorded the confession statement voluntarily given by him. On the basis of the admissible portion, Ex.P4 in the disclosure statement of the first accused, firewood, M.O.1 was recovered from the field of one Sundarakonar under relevant seizure mahazar, Ex.P5.
13. Mr.Selvaraj, PW7, took photographs of the scene of occurrence at many angles as per the direction of PW13. The photographs have been marked as M.O.4 series and the negatives thereof as M.O.5 series.
14. Mr.Mohan, PW8, the Head Clerk attached to the court of learned Judicial Magistrate II, Tiruvannamalai, has spoken to the requisition received from PW13 for the purpose of sending the Material Objects for chemical examination and the covering letter, Ex.P9 emanated from the learned Judicial Magistrate requesting the chemical examiner to analyse the Material Objects and the chemical report, biology report and serology report, Exs.P10 to P13.
15. The Inspector of Police, PW14, who took up the case for further investigation thoroughly went through the entire case diary and laid final report as against the accused under Sections 323 and 302 and 302 IPC on 16.1.2003.
16. The incriminating circumstances spoken to by the witnesses examined on the side of prosecution were brought to the notice of the accused under Section 313 Cr.P.C. The accused responded saying that he was not involved in the crime alleged as against him.
17. Neither oral nor documentary evidence was let in on the side of the defence.
18. The Trial Court, having adverted to the ocular testimony of P.Ws.1, 2 and 3 in the background of the medical evidence available on record, has come to the conclusion that the accused not only caused simple injuries to P.Ws.1 and 2 but also committed the murder of Ashok .
19. Learned Counsel appearing for the appellant would submit that PW1 has completely given a go-by to the version of the prosecution during the course of cross examination. She has categorically stated before the Trial Court that the moment she received an attack from the accused, she fainted and thereafter, she was not aware as to how her daughter Chandra, PW2 and the deceased Ashok sustained injuries in the occurrence. Therefore, the testimony of PW1 does not inspire judicial confidence. PW2 appears to be the author of the FIR setting the law in motion, but, the prosecution has purposely suppressed such a material fact which goes to the root of the matter. Further, it is her admitted version that the accused was apprehended in the early morning on 8.7.2002 itself. Therefore, the arrest of the accused and recovery of Material Objects spoken to by the witnesses examined on the side of the prosecution crashes to the ground. PW3 would also state that he was inside the house at the time when the occurrence unfolded and he saw his brother sustained injuries when he come out of the house on hearing the noise. Therefore, PW3 also cannot be classified as ocular witness in this case. Apart from those three witnesses, there is no legal evidence available on record and that therefore, the accused is entitled to acquittal, it is further contended.
20. Learned Additional Public Prosecutor would submit that though there is some deviation in the cross examination portion of P.Ws.1 and 3 about the description of the occurrence, during the chief examination, PW2 has withstood the rigors of cross examination. Further, the testimony of the injured witnesses, P.Ws.1 and 2 cannot be simply slighted by the court of law. Though PW2 has stated that she was the author of the FIR in the early morning on 8.7.2002, the testimony of the Sub Inspector of Police, PW11 would go to show that it was only Unnamalai, PW1 who had set the law in motion by giving statement to PW11. The Trial Court has rightly returned the verdict of conviction and therefore, the same does not warrant for interference.
21. It is true that Chandra, PW2, during the course of cross examination, would state that the police officials came to her house during midnight at 12.00 hours on 7.7.2002 and recorded her statement. But, on a careful perusal of the copy of the accident register, Ex.P2 relating to PW2, it is found that PW2 was not armed with any police memo, but, it is seen that she was brought by Vediammal who is none other than the sister of PW2 to the hospital for admission and treatment. Such a factum recorded by Dr.Kuppuraj, PW6 cannot be doubted by the court. We find that PW2 had simply blabbered certain things during the course of cross examination against the telling materials available on record. Such portion of the evidence of PW2 need not be given much credence. If at all, PW2 had given first information report to the police officials and was referred to the hospital by the police officials, the tenor of PW8 would have been totally different. The police memo and the police officials who brought PW2 to the hospital for admission would have been referred to in Ex.P8.
22. It is quite relevant to refer to the evidence of the Sub Inspector of Police, Mr.Rajasekaran, PW11. It is his categorical version that the moment he received intimation from the Government Hospital, Tiruvannamalai, he rushed to the hospital at 2.15 am on 8.7.2002 and thereafter, he had to loiter both at Government Hospital, Pondicherry and also at Government General Hospital, Chennai to locate the injured in this case for the purpose of obtaining statement to set the law in motion. PW1 also would categorically state that it was she who gave the first information report to PW1. PW11 has also deposed before the court that at 11.00 am on 8.7.2002, he ultimately located Unnamalai, PW1 and recorded her statement and thereafter, he registered a case and prepared the printed FIR. We cannot permit the defence to take advantage of a truncated portion found in the cross examination of PW1.
23. Unnamalai, PW1 has completely spoken to the occurrence involved in front of her house wherein she, her daughter and her son received injuries at the hands of the accused. But, quite, unfortunately, she could not withstand the rigors of the cross examination. She fumbled during the course of cross examination and stated that it was she who received an attack from the accused at the first instance and immediately thereafter, she fainted and therefore, she was not aware as to how her daughter Chandra, PW2 and her son Ashok received injuries. After all Unnamalai is found to be a totally unlettered woman. She had, in fact, affixed her thumb impression in the deposition recorded from her by the Trial Court. Therefore, some allowance will have to be given to her illiteracy. The strange atmosphere prevailed in the court precinct would have contributed to her resilience from the original version found in the chief examination. But, we cannot forget the fact that she was also one of the injured persons in the occurrence. Atleast that part of her evidence that she sustained injury at the time of occurrence at the hands of the accused stood proved.
24. Karunamurthy, PW3, who is the son of PW1, also would state, during the course of cross examination, that he came down only after his brother received injuries, but, the entire evidence of PW3, who was just 17 years old at the time of occurrence, will have to be carefully perused and analysed. The aforesaid portion of the evidence found in the cross-examination cannot be separately truncated to test his veracity. After all, the occurrence had taken place at 7.30 pm in the house where he resided. Therefore, it is quite obvious that he was a natural witness to the occurrence. If we read the whole evidence of PW3, we can easily come to the conclusion that he was also one of the witnesses to the occurrence. It is quite improbable for Karunamurthy, PW3 to be quite engrossed in his studies when a commotion was raging outside his house. Therefore, his testimony that he also witnessed the whole occurrence is found to be trustworthy and reliable. PW2 has also stood the rigors of the cross-examination and there is no reason to doubt her ocular testimony. P.Ws.2 and 3 have established that it was only the accused who came to the house of PW1 and attacked P.Ws.1 and 2 and caused simple injuries and launched attack on Ashok and caused his death.
25. In all fairness, we would state that there is some doubt about the date and time of arrest. PW2 would state that the accused was arrested in the early morning on 8.7.2002. It is her further version that she found him in the police station on the said day. Therefore, the arrest and recovery part of the case of the prosecution is found to be doubtful. But, when ocular testimony is there and the injured witnesses have spoken to the occurrence, we are unable to reject the case of the prosecution that it was only the accused who has caused injuries to P.Ws.1 and 2 and caused death of Ashok .
26. The learned Counsel for the appellant would submit, without prejudice to his plea for acquittal of the accused, that the whole occurrence had taken place only on account of the quarrel which preceded the occurrence. Further, the accused was not found armed with any weapon at the time of the occurrence and he had just retrieved a firewood which was found in front of the house of the grandmother of the deceased and attacked P.Ws.1 and 2 and the deceased Ashok in the heat of passion in culmination of the quarrel that erupted on account of intervention of P.Ws.1 and 2 when he, in his capacity as the husband of Vediammal, questioned her propriety in not lighting up a lamp in the house even during night. Therefore, the Trial Court has wrongly convicted the accused for offence under Section 302 IPC. The act of the accused, as spoken to by the witnesses would fall within the exception of Sub-section 4 to Section 300 IPC, it is submitted.
27. We gave our anxious thought to the aforesaid submission made by the learned Counsel for the appellant which has so much of force.
28. On a careful perusal of the testimony of PW1, it is found that she has admitted that had she and PW2 not intervened, the occurrence would not have taken place. PW1 would further state that she also joined PW2 and heaped abuse on the accused in a filthy language. The accused had come down to the house of PW1 only for the purpose of taking his wife to his home. She would also categorically admit that wordy altercation preceded the occurrence. It is the version of the prosecution that the accused came down to the house of PW1 empty handed.
29. PW2, on her part, also would state that for about half an hour, the accused and his wife Vediammal quarreled with each other prior to the occurrence proper. She would further depose that her mother was attacked as she intervened in the quarrel between the accused and his wife. The whole occurrence would not have taken place had P.Ws.1 and 2 and the deceased Ashok not intervened in the affairs of the accused with his wife.
30. The post mortem certificate, Ex.P16 in the background of the testimony of post mortem Doctor, PW12 would demonstrate that the head injuries sustained by Ashok had taken away his precious life. The Doctor would depose that weapon like the stick, M.O.1 would have been used to cause such an injury.
31. The court has already found that the accused has authored culpable homicide apart from simple injuries on the person of P.Ws.1 and 2. In the above facts and circumstances detailed by us, we will have to see whether the act of the accused falls under any of the exceptions found in Section 300 IPC. We find that the accused had come to the house of PW1 totally unarmed. Therefore, he would not have been afflicted with pre-meditation to cause death of Ashok. P.Ws.1, 2 and 3 would categorically depose that there had been a sudden fight between the wife and the husband and the intervention of P.Ws.1 and 2 had roused the heat of passion. The nature of weapon wielded by the accused, the place of retrieval of the weapon and the number of injuries caused by the accused on the person of the deceased would unerringly go to show that the accused had not taken undue advantage of the situation nor had he acted cruelly in launching the attack on Ashok. In view of the above, we find that the act of the accused squarely falls under exception 4 to Section 300 IPC.
32. In the fit of anger on the account of intervention which flowed from P.Ws.1 and 2, he had just rained blows on the head of Ashok. His mission was only to take his wife to his home. If he had attacked his wife and caused her death, we can safely presume the intention to cause the death of his wife. Here, the intervenor had been attacked when he intervened at the time when the accused was at the crescendo of passion. Though he might have had knowledge that his attack was likely to cause death, we find that he would not have had any intention to cause death of his brother-in-law. Therefore, we have chosen to punish him under Section 304 Part II IPC.
33. In view of the above discussion, the judgment of conviction and sentence passed by the Trial Court as against the accused for offence under Section 323 IPC (2 counts) stands sustained, but, the conviction and sentence recorded by the Trial Court for offence under Section 302 IPC is set aside and instead, the accused is found guilty of offence under Section 304 Part II IPC and sentenced to undergo four years rigorous imprisonment. The criminal appeal is ordered accordingly.