Madras High Court
P.Mahamuni vs The State Represented By on 9 November, 2020
Author: T.Raja
Bench: T.Raja, B.Pugalendhi
Crl.A.(MD) No.124 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 09.01.2020
DATE OF DECISION : 09.11.2020
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRL.A (MD)No.124 of 2018
P.Mahamuni .. Appellant
-vs-
The State represented by
The Inspector of Police
Kollidam Police Station
Trichy [Cr.No.160 of 2012] .. Respondent
Criminal Appeal filed under Section 374(2) of the Code of
Criminal Procedure against the judgment dated 23.10.2017 passed in
S.C.No.164 of 2016 on the file of the learned Principal District &
Sessions Judge, Tiruchirappalli.
For Appellant :: Mr.A.Thiruvadi Kumar
For Respondent :: Mr.R.Anandharaj
Additional Public Prosecutor
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http://www.judis.nic.in
Crl.A.(MD) No.124 of 2018
JUDGMENT
T.RAJA, J.
This criminal appeal has been brought before us by the appellant/accused P.Mahamuni, aged about 74 years, challenging the correctness of the judgment dated 23.10.2017 passed in Sessions Case No.164 of 2016 by the learned Principal District and Sessions Judge, Tiruchirappalli convicting the appellant/accused for the offence under Sections 341, 294(b), 302, 506(ii) of Indian Penal Code (for short, “the IPC”) and Section 27(1) of the Arms Act and thereby sentencing him to undergo simple imprisonment for one month for the offence under Section 341 IPC and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for 15 days; to undergo simple imprisonment for three months for the offence under Section 294(b) IPC and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for one month; to undergo imprisonment for life for the offence under Section 302 IPC and to pay a fine of Rs.2000/-, in default to undergo rigorous imprisonment for two years; to undergo rigorous imprisonment for seven years for the offence under Section 506(ii) IPC and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for one year; to undergo 2/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 rigorous imprisonment for seven years for the offence under Section 27(1) of the Arms Act and to pay a fine of Rs.1000/-, in default to undergo simple imprisonment for one year, respectively. All the sentences were ordered to run concurrently.
2. Mr.A.Thiruvadikumar, learned counsel appearing for the appellant/accused, briefly narrating the prosecution case, stated that the deceased-Murugesan, an auto driver, shifting his residence, came nearer to the house of the appellant/accused. Since the accused had objected to the usage of the lane adjacent to his house by the deceased and his family for parking the auto, animosity arose between the accused and the deceased. The quarrel that emanated between them was also pacified by the neighbour, P.W.3 and the Councillor Sakthivel at one point of time. It was further alleged that when the deceased started quarrelling with the accused, the accused threatened him by showing the gun. While so, at about 7.00 P.M., on 5.6.2012, when the deceased was passing through the lane after parking his auto that was objected to by the accused, a wordy quarrel arose. In the midst of wordy altercation between them, the witnesses, P.W.7-Ganesan, P.W.3-Manoharan, P.W.8-Saravanan and the 3/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 Councillor-Sakthivel, who died during the trial, had intervened and thereby the accused was taken to his house and locked inside. However, the accused had come out from the back door along with the gun and after threatening P.W.2-Kamatchi and P.W.4-Savitha, fired at the deceased and thereafter dropped the gun resulting in its breakage, left the scene of occurrence. It is also the further case of the prosecution that immediately after the deceased was shot at, he was rushed to the hospital, where P.W.5-Dr.Parkavan Pachamuthu instructed them to take the deceased to the Government Hospital and while they were taking the deceased to the Government Hospital, he succumbed to the injuries on the way. Hence, P.W.1-Malliga, the wife of the deceased, brought the body to her house and immediately went to the police station and lodged the complaint marked as Ex.P1.
3. P.W.16-Muthukumar, Sub Inspector of Police, who was on duty, after receiving the complaint, registered the First Information Report in Crime No.160 of 2012 under Sections 341, 294(b), 302, 506(ii) of IPC read with Section 25(1)(a) of the Arms Act, which is marked as Ex.P19. After registering the First Information Report, he sent the same to the 4/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 learned Judicial Magistrate, Tiruchirappalli through a special messenger. P.W.17-Elanchezhiyan, Inspector of Police, on receipt of First Information Report in Crime No.160 of 2012, at about 22.30 hours, rushed to the place of occurrence and in the presence of witnesses, Vijayakumar and Sathishkumar, prepared the Observation Mahazar, Ex.P7 and drew the rough sketch, Ex.P20. Thereafter, he collected the bloodstained earth through seizure mahazar, Ex.P8 and the bloodstained earth has been marked as M.O.4, while the non-bloodstained earth has been marked as M.O.5. Again at 12’O clock midnight on 6.6.2012, he conducted inquest over the dead body in the presence of panchayatdars and witnesses and prepared the inquest report marked as Ex.P21. He handed over the dead body along with the requisition letter to the Special Sub Inspector of Police-Sathasivam for conducting postmortem and examined the witnesses, P.Ws.1,2,3,4,7,8 and recorded their statements.
4. In the meanwhile, on 6.6.2012 at 4.00 hours, the accused surrendered before P.W.11-Shantha, Village Administrative Officer while she was in the office and gave an extra-judicial confession, which was marked as Ex.P22. Thereafter, P.W.11 accompanied by her Village 5/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 Assistant came to the police station on 6.6.2012 and handed over the accused to P.W.17, who arrested the accused in her presence and recorded the confession statement given by the accused, the admissible portion of which is marked as Ex.P11. Thereafter, based on the statement given by the accused, all of them proceeded to the house of the accused, where the accused handed over two broken pieces of gun, M.Os.1 & 2, one iron rod, M.O.6, which were recovered under the seizure mahazar, Ex.P9 along with iron pellets, gun powder, phosphorous powder, cape cracker, balrus pellet, dhoti and jatti, which were marked as M.Os.7 to 14 under Ex.P10 seizure mahazar, by P.W.17. Thereafter, he sent the accused to judicial custody and also sent the seized properties under Form 95 to the learned Judicial Magistrate No.IV, Tiruchirappalli and the recovery mahazars are marked as Exs.P23 to P26.
5. Thereafter, P.W.18-Sakthivel, Inspector of Police took up the case for further investigation and after examining the witnesses, namely, Sub Inspector of Police-Mr.Muthukumar, Special Sub Inspector of Police-Mr.Sathasivam and the photographer, recorded their statements. 6/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 As P.W.18 was transferred, P.W.19-Manohar, Inspector of Police, took up further investigation and examined the official witnesses and recorded their statements. After completing the investigation, he laid the final report against the accused for the offence under Sections 341, 294(b), 302, 506(ii) IPC read with Section 27(1) of the Arms Act.
6. The prosecution, to prove their case, examined 19 witnesses, marked 26 documents and 14 material objects on their side. None was examined and no document was marked on the side of the defence.
7. When the accused was questioned under Section 313 Cr.P.C., on the incriminating materials appearing against him in the evidence let in by the prosecution, the accused, denying the evidence of the witnesses as false, stated that a false case has been foisted against him.
8. The trial Court, after framing the following point for final determination, “Whether the prosecution has proved the charges under Sections 341, 294(b), 302, 506(ii) of IPC read with Section 27(1) of the Arms Act as against the accused?” 7/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 came to the conclusion that the accused is guilty of all the charges and accordingly convicted him for the offence and sentenced him to undergo the period of sentence, as mentioned earlier. Aggrieved thereby, this criminal appeal has been filed.
9. Mr.A.Thiruvadi Kumar, learned counsel appearing for the appellant/accused pleaded that the trial Court failed to take into account that the accused was aged about 66 years on the date of occurrence and was not even in a position to handle the gun marked as M.Os.1 & 2. The trial Court has failed to consider the fact that even though P.Ws.1 to 4 claimed to be present at the time of occurrence, no one took the deceased to the hospital immediately after the occurrence, except P.W.1, who was assisted by P.W.7, and the same was also not established beyond reasonable doubt. Moreover, when the police station is situated 2 K.M., from the place of occurrence, there was a long delay in lodging the complaint, Ex.P1 by P.W.1. Even after the belated complaint was given, there was yet again an unreasonable delay of 16 hours in the First Information Report, Ex.P19 reaching the learned Judicial Magistrate and such a long delay has not been explained by the prosecution before the 8/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 trial Court. Therefore, the First Information Report, which was belatedly given and belatedly reached the learned Judicial Magistrate, is highly doubtful.
10. Learned counsel appearing for the appellant also pleaded that when it is the categorical admission of P.W.13-Kamaraj, Special Sub Inspector of Police that within 30 minutes, the Court can be reached from the police station, the delay of six hours for the First Information Report reaching the learned Judicial Magistrate is very much fatal to the prosecution case, in view of the evidence given by P.W.9, observation mahazar witness, who also admitted to the presence of police therein. When there was a huge delay in giving the complaint and also the First Information Report reaching the learned Judicial Magistrate, an inevitable doubt ensues with regard to the presence of the eye witnesses, as a result, the true version of the prosecution has been suppressed and ultimately the origin and genesis of the occurrence becomes doubtful. Moreover, the eye witnesses examined by the prosecution happened to be relative witnesses and their presence, more particularly, when P.Ws.7 & 8 are only chance witnesses. It could also be further seen that all the eye 9/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 witnesses had deposed like a parrot-like version and scrutiny of their version would go to show that they have been planted as eye witnesses by the prosecution. Even a cursory reading of the evidence of P.W.1 also does not inspire confidence, because it is contradicted by the evidence of P.W.2 and also by the evidence of P.W.10. Explaining further the contradiction, it has been pleaded that the contents of the rough sketch would show that the body of the deceased was kept in front of the house of P.W.3, but two witnesses have deposed that the dead body was kept in front of the house of the deceased. This contradiction is fatal to the prosecution case, for the reason that all the witnesses are planted as chance witnesses and they have not witnessed the occurrence. Therefore, the highly doubtful evidence of the eye witnesses cannot be believed. Moreover, the investigation officer has not disclosed in the observation mahazar and the rough sketch about the distance between the house of the accused and the house of the deceased. Therefore, the omissions and commissions committed by the investigation officer creates a doubt about the genuineness of the prosecution case. Since there has been contradiction between the evidence of P.Ws.1 to 3 on the one hand and the investigation officer, the absence of examining independent witnesses 10/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 is highly fatal to the prosecution case. Hence the accused cannot be convicted based on the evidence of the interested witnesses. The overall factual aspects would go to show that the entire occurrence had occurred without any premeditation pursuant to a wordy altercation. However, when the act was done with an intention to cause bodily injury, which has resulted in his death, the accused can be held liable under Section 304 (Part-I) IPC. In support of the said proposition, he has relied upon the following judgments of the Supreme Court in Thankachan and another v. State of Kerala, AIR 2008 SC 406; Rampal Singh v. State of Uttar Pradesh, (2012) 3 SCC (Crl) 860 and Criminal Appeal No.259 of 2015 dated 7.11.2019 (Kandaswamy Ramaraj v. The State by Inspector of Police, CBCID).
11. Opposing the above contentions, Mr.R.Anandharaj, learned Additional Public Prosecutor appearing for the respondent argued that it is the clear case of murder committed by the accused, which has been substantiated by the evidence of the eye witnesses deposing consistently that in their presence, the accused shot the deceased using his country made gun. Besides, the evidence of P.Ws.1 to 4, 7 & 8 corroborated with 11/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 each other and they are cogent, reliable and trustworthy. In addition thereto, the doctor’s evidence also corroborates the testimony of the prosecution witnesses, therefore, the trial Court has accepted the prosecution case as proved. When the testimonies of the prosecution witnesses establish clearly that due to the firing by the accused, the death has been caused, the accused has been rightly convicted of the offence punishable under Sections 341, 294(b), 302, 506(ii) of IPC read with Section 27(1) of the Arms Act. Again replying to the contention made by the learned counsel appearing for the appellant that no independent witness has been examined that raises a huge doubt on the prosecution case, Mr.Anandharaj, learned Additional Public Prosecutor argued that the rough sketch, Ex.P20 clearly shows that there are no independent witness residing in and around the occurrence place. Further when the occurrence happened at 7’O clock in the evening in front of the house of the deceased, it cannot be expected to examine any independent witness. Above all, when the prosecution witnesses have deposed and given evidence cogently which are trustworthy, the non-examination of any independent witness is not fatal to the prosecution case. On this basis, he prayed for dismissing the criminal appeal.
12/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018
12. We have carefully considered the rival contentions and also the materials placed on record. Admittedly, the deceased-Murugesan was an auto driver, who resided nearby the house of the accused. Since the deceased used to park his auto in the lane leading to the house of the accused, it appears that the accused had objected to the usage of the lane adjacent to his house by the deceased and his family and this has resulted in wordy quarrel that was also witnessed by the neighbour- P.W.3 and the Councillor Sakthivel, who died during the trial, at one point of time. While so, at about 7.00 P.M., on 5.6.2012, when the deceased had passed through the lane after parking the auto that was objected to by the accused, instantly, a wordy quarrel arose and it is the case of the prosecution that P.W.1, P.W.3 & P.W.8 had intervened in the altercation, therefore, the accused was taken to his house and locked inside, however, the accused came out from the back door along with the gun and opened fire on the deceased. Immediately he was rushed to the hospital, where he was declared brought dead. Hence the body was brought back and placed in front of the house of the deceased. The evidence P.W.6-Dr.Renuga Devi, who conducted post-mortem and issued the post-mortem 13/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 certificate, Ex.P3, has mentioned as follows:-
“.....Contains undigested full sized cooked rice particles. Alcohol smell present, mucosa congested; .......” In the final opinion, she has also stated that the wound report detected ethyl alcohol.
13. Therefore, when the medical evidence, which is independent and natural, has spoken clearly that the deceased was under intoxication, the trial Court, while accepting the case of the prosecution, has proceeded to try the accused for the offence under Sections 341, 294(b), 302, 506(ii) of IPC read with Section 27(1) of the Arms Act. Now the evidence of P.W.1, the wife of the deceased clearly admits the lifestyle and the conduct of the deceased on the date of occurrence. P.W.1- Malliga, the wife of the deceased clearly spoke that her husband was already implicated in another murder case that was also pending and she also deposed that on the date of incident, her husband was not in a drunken mood and that the accused never advised him not to take drinks and visit the lane, since several children and ladies were residing therein. It is pertinent to extract the relevant portion of her evidence as follows:- 14/21
http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 “.vdJ fzth; bgahpy; Vw;bfdnt bfhiy tHf;F cs;sJ/ vjphp ghijapy; tuf;TlhJ vd;W brhd;djhf brhy;tJ ,e;j tHf;fpw;fhf n$hof;fg;gl;lJ vd;W brhd;dhy; rhpay;y/ vdJ fzth; Foj;Jtpl;L tUk;nghJ vjphp.
mtiu ghh;j;J. ,';F FHe;ijfs; vy;yhk;
cs;sJ. Foj;Jtpl;L ,e;j gf;fk; tuntz;lhk;
vd;W chpika[ld; vdJ fztiu ghh;j;J brhy;thh; vd;W brhd;dhy; rhpay;;y/”
14. The above evidence proved to be wrong, in view of the evidence given by the doctor-P.W.6 supported by the post-mortem certificate, which says that the body of the deceased smelt alcohol.
Secondly, it was also admitted that he was facing yet another murder case that was pending. These incriminating circumstances could have been taken note of by the trial Court to punish the accused under Section 304 (Part-I) of IPC, for the simple reason that when the incident took place for about half an hour, on the date of occurrence, as per the medical evidence, the deceased had come to his house after taking alcohol and 15/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 parked the auto in the lane leading to the house of the accused. Noticing the same, the accused would have normally asked the deceased to park the auto without causing inconvenience or disturbance to the passer-by. As the deceased refused due to consumption of alcohol that was present in his body as per the post mortem certificate, a wordy quarrel has arisen and in a heat of passion, the accused had opened fire only once. Therefore, we are of the considered opinion that the evidence and the attending circumstances would show that the entire occurrence had taken place without any premeditation preceded by wordy quarrel before the occurrence. Further, when the accused has intended to cause bodily injury which has ultimately resulted in the death of the deceased, we deem it appropriate to bring the accused punishable for the offence under Section 304 (Part-I) of IPC, instead of Section 302 of IPC.
15. In this context, it is relevant to extract the relevant paragraph of the judgment of the Supreme Court in Thankachan and another v. State of Kerala, AIR 2008 SC 406, holding as follows:-
“10. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its 16/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties 17/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused ( a ) without premeditation; ( b ) in a sudden fight; ( c ) without the offender having taken undue advantage or acted in a cruel or unusual manner; and ( d ) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or 18/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and that there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
16. Applying the above principle to the facts of this case, if we look at the judgment of the trial Court, it goes without saying that a wordy quarrel occurred between the accused and the deceased over the parking of auto on the lane leading to the house of the accused. The deceased was under intoxication, as per the post-mortem certificate, further it also appears that the deceased was facing another murder criminal case, therefore, he could have acted, provoking the accused to try the shot which hit him on the left side of his chest, that has ultimately resulted in his death. The accused is aged about 74 years, therefore, this Court holds that the accused is guilty of the offence under Section 304 (Part-I) of IPC, instead of Section 302 of IPC, and accordingly convicts and sentences him to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs.10,000/- in 19/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 default to undergo simple imprisonment for one year. However, the judgment of the trial Court in respect of the conviction and sentence awarded to the accused under Sections 341, 294(b), 506(ii) of the IPC and Section 27(1) of the Arms Act and the respective sentences are sustained and all the sentences are ordered to run concurrently. With the above modification in the conviction and sentence, the criminal appeal stands partly allowed.
Speaking/Non speaking order (T.R.J.,) (B.P.,J) 09.11.2020 Index : yes/no ss To
1. The Principal District & Sessions Judge Tiruchirappalli
2. The Inspector of Police Kollidam Police Station Tiruchirappalli
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court Madurai 20/21 http://www.judis.nic.in Crl.A.(MD) No.124 of 2018 T.RAJA, J.
and B.PUGALENDHI, J.
ss Judgment in Criminal Appeal No.(MD) No.124 of 2018 09.11.2020 21/21 http://www.judis.nic.in