Madras High Court
Thiyagarajan vs State By Inspector Of Police on 13 February, 2023
Author: M.Nirmal Kumar
Bench: M.Sundar, M.Nirmal Kumar
2023:MHC:865
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.02.2023
Coram
The Hon’ble Mr. Justice M.SUNDAR
and
The Hon'ble Mr. Justice M.NIRMAL KUMAR
Crl. Appeal No. 673 of 2018
Thiyagarajan .. Appellant
Vs
State by Inspector of Police,
K1 Sembium Police Station,
Chennai. .. Respondent
Criminal Appeal filed under Section 374(2) Cr.P.C. against the
judgment of the VII Additional Sessions Judge, Chennai made in S.C.
No.557 of 2010 dated 04.10.2013.
For Appellant .. Mr.C.D.Johnson
For Respondent .. Mr.S.Rajakumar,
Addl. Public Prosecutor
JUDGMENT
(Judgment of the Court was delivered by M.NIRMAL KUMAR, J.) The appellant/accused in S.C.No.557 of 2010 is convicted by the trial Court by judgment dated 04.10.2013 as under:
https://www.mhc.tn.gov.in/judis 2 The appellant was initially charged for the offence under Sections 450, 302, 307 and 506(ii) I.P.C. On conclusion of trial, the trial Court acquitted the appellant for the offence under Section 506(ii) IPC and convicted the appellant for the offence under Sections 302, 307 and 450 I.P.C. and for the offence under Section 302 I.P.C., sentenced him to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo three months simple imprisonment, for the offence under Section 307 I.P.C., sentenced him to undergo seven years rigorous imprisonment and to pay a fine of Rs.500/-, in default, to undergo three months simple imprisonment and for the offence under Section 450 I.P.C., sentenced him to undergo five years rigorous imprisonment and to pay a fine of Rs.500, in default, to undergo three months simple imprisonment.
2. The gist of the prosecution case is as follows:
2.1 P.W.1/mother of the deceased Anurekha and the appellant/accused were known to each other and they were doing real estate business. P.W.1's daughter Anurekha had completed her B.Com degree and was pursuing her M.B.A. Course by distance education. The appellant used to visit P.W.1's house often in the course of the business and he developed liking towards P.W.1's https://www.mhc.tn.gov.in/judis 3 daughter and requested P.W.1 to give her daughter in marriage which was refused and the appellant was asked not to visit the house of P.W.1. This happened few months prior to 07.03.2010.
2.2 On 07.03.2010, between 8.30 and 9.00 p.m., when P.W.1, her daughter Anurekha and her college mate Thiyagu @ Thiyagarajan/P.W.2 were chatting in P.W.1's house, the appellant came there, got infuriated seeing P.W.2 and the deceased chatting, took M.O.1 knife, attempted to assault the deceased, P.W.1 intervened, she was pushed aside and the appellant indiscriminately cut the deceased and inflicted stab injuries. P.W.2 also intervened and he sustained grievous injuries. Thereafter, appellant left the place. On hearing the cry, P.W.3/neighbour came there and witnessed the occurrence.
2.3 Immediately after the occurrence, the deceased and P.W.2 were rushed to Kilpauk Medical College and Hospital. P.W.11/Chief Medical Officer attached to Kilpauk Medical College and Hospital examined P.W.2, issued Accident Register Ex.P9 and referred him for further treatment to Dr.Rajiv Gandhi Government General Hospital.
P.W.11 had examined the deceased and issued Accident Register Ex.P10. Thereafter, P.W.2 was shifted to Dr.Rajiv Gandhi https://www.mhc.tn.gov.in/judis 4 Government General Hospital and P.W.5 casualty medical doctor attached to the said hospital examined P.W.2. Ex.P2 is the opinion given by P.W.5/doctor and Ex.P3 series is the treatment given to P.W.2. Thereafter, P.W.2 got admitted in Sundaram Medical Foundation, took treatment as inpatient for more than 40 days. P.W.9/doctor, who treated P.W.2 issued Ex.P4/discharge summary and Ex.P5/wound certificate.
2.4 On the complaint given by P.W.1/mother of the deceased, P.W.13 Sub Inspector of Police registered Ex.P12/first information report, visited the scene of occurrence and also drew rough sketch/Ex.P13 and prepared observation mahazar/Ex.P14. He had also recovered blood stained cement slab/M.O.2 and slab without blood stain/M.O.3 in the presence of witnesses under the seizure mahazar/Ex.P15 and sent the same to Court. P.W.13 sent the body of the deceased to hospital.
2.5 P.W.14 Inspector of Police took up further investigation, examined witnesses and recorded their statements. He conducted inquest over the dead body of the deceased and sent the body for post mortem. Ex.P19 is the inquest report. P.W.14 also examined the doctors and the forensic expert collected documents and recorded https://www.mhc.tn.gov.in/judis 5 their statements.
2.6 P.W.12 is the doctor who conducted post mortem and issued post mortem certificate Ex.P11. P.W.10 forensic expert examined the material objects, Ex.P6 is the report given. P.W.10 examined the blood stained clothes and knife and Ex.P7 is the report. Thereafter, she sent the same for further examination to P.W.15/Serologist. After examination, P.W.15 gave reports Exs.P16 to P18.
2.7 On completion of investigation, P.W.14 filed charge sheet for the offences stated supra before the trial Court. Earlier, search was made for the appellant/accused and on 26.03.2010, P.W.14 arrested the appellant near Perambur bus stand and recorded his confession statement in the presence of P.W.8 Nagaraj and one Mohammed. Ex.P20 is the admissible portion of confession statement and based on his statement, P.W.14 recovered M.Os.1, 4 and 5 under seizure mahazar Ex.P21.
3. During the trial, P.Ws.1 to 10 examined, Exs.P1 to P23 filed and M.Os.1 to 10 marked.
https://www.mhc.tn.gov.in/judis 6
4. When the accused was questioned under Section 313 Cr.P.C., he denied his complicity in the crime.
5. The trial Court having analysed the evidence adduced by the prosecution, found the appellant guilty of the offence under Sections 302, 307 and 450 I.P.C. and convicted him as stated above.
6. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor.
7. Learned counsel for the appellant submits that the appellant and P.W.1 were jointly doing real estate business and P.W.1 is a single parent. The appellant used to visit the house of P.W.1 regularly and at times he used to have food there. Initially, P.W.1, who is a single parent, encouraged the appellant's desire to marry her daughter but subsequently, she refused. P.W.2 is the college mate of the deceased, who used to visit the house of P.W.1. According to the appellant, P.W.2 was the reason for refusal of his marriage proposal to P.W.1's daughter. On 07.03.2010, he went to the house of P.W.1 and found P.W.1, deceased and P.W.2 were sitting in close quarters and chatting, which enraged the appellant and due to which, he assaulted the deceased with M.O.1 knife. P.Ws.1 and 2 https://www.mhc.tn.gov.in/judis 7 intervened and they also sustained injuries. Learned counsel for the appellant further submitted that P.W.6/father of P.W.2 would confirm that he was not happy with the relationship between P.W.2 and the deceased Anurekha.
7.1 The thrust of the argument of the learned counsel for the appellant is that the appellant had committed the offence due to sustained provocation and therefore, exception under Section 300 I.P.C. would attract. In support of his contention, learned counsel for the appellant relied upon the judgment of this Court in Suyambukkani Vs. State of Tamil Nadu reported in MANU/TN/0504/1989 : 1989 LW Crl. 86, wherein this Court relying upon the judgment in Nallathangal case propounded the sustained provocation theory and had acquitted the appellant therein. He would submit that the appellant is also entitled for the same benefit. Alternatively, he made a submission that the offence may be altered into one under Section 304(1) I.P.C. and the sentence may be reduced. He further submitted that in any event, the facts and circumstances of the case would not justify the appellant's conviction under Section 302 I.P.C.
8. Learned Additional Public Prosecutor submits that this is a https://www.mhc.tn.gov.in/judis 8 case of cold blooded murder. The appellant herein was doing real estate business along with P.W.1 and taking advantage of the business relationship, he had developed one side love and insisted P.W.1 to give her daughter in marriage. The appellant studied only upto 5th standard whereas the deceased Anurekha/daughter of P.W.1 has completed her B.Com degree and was pursuing her M.B.A. by distance education. He further submitted that nowhere in the evidence of P.Ws.1, 3 and 4, it could be seen that the deceased Anurekha had responded to the wish and desire of the appellant. In fact it was spurned off. Learned Additional Public Prosecutor submitted that the appellant, who had committed gruesome cold blooded murder, cannot be shown any leniency and his sentence cannot be modified.
9. On 07.03.2010, the appellant had gone to the house of P.W.1, with a long knife of 28 cms and on seeing the deceased, P.W.1 and P.W.2 chatting, started attacking the deceased all over the body. When P.W.1 intervened, she was pushed aside and thereafter deceased was inflicted with cut and stab injuries. P.W.2 intervened and he also sustained severe injuries. Both the deceased and P.W.2 were taken to Kilpauk Medical College and Hospital, where P.W.1's daughter was declared dead. P.W.2 was referred to Dr.Rajiv Gandhi https://www.mhc.tn.gov.in/judis 9 Government General Hospital for further treatment and thereafter P.W.2 took treatment at Sundaram Medical Foundation as inpatient for more than a month and finally his life could be saved. The act of the appellant was a cold blooded murder as he without any rhyme or reason and with predetermination had brought a long knife and without any provocation had indiscriminately inflicted injuries both on the deceased and P.W.2. He further uttered that “vdf;F fpilf;fhjts; ,dp ahUf;Fk; fpilf;ff; TlhJ“ which would prove the intention and motive of the appellant to do away the deceased.
10. In this case, on the complaint of P.W.1, P.W.13 Sub Inspector of Police registered a first information report, took up the investigation, inspected the scene of occurrence in the presence of witnesses, drew rough sketch and prepared observation mahazar. P.W.14 Inspector of Police took up further investigation and in the presence of witnesses, collected the blood stained articles and forwarded the same to the forensic and serology experts. He conducted inquest over the dead body of the deceased in the presence of witnesses and thereafter sent the body for post mortem. In the meanwhile, on 26.03.2010, arrested the accused, recorded his confession and recovered M.O.1 knife and the blood stained clothes of https://www.mhc.tn.gov.in/judis 10 the accused. He had also examined the doctors – P.Ws.5, 9, and 12 who had treated P.W.2 and P.W.12 the doctor who conducted post mortem. On completion of investigation, charge sheet was filed. The trial Court on examination of witnesses and materials produced had convicted the appellant as stated above.
11. On a perusal of the material particulars, it is seen that P.W.1 and the appellant were jointly doing real estate business and the appellant used to visit P.W.1's house regularly. P.W.1, a single parent, was doing the real estate business for upbringing her daughter Anurekha, who had completed her B.Com Degree and was pursuing M.B.A. through distance education. The appellant taking advantage of the relationship and acquiescence had developed interest and asked P.W.1 to give her daughter in marriage. P.W.1 and her daughter were not interested. Thereafter, P.W.1 informed appellant not to visit her house and she restrained her relationship with the appellant. Three months thereafter, on 07.03.2010, when P.Ws.1 and 2 and deceased were in the house of P.W.1, the appellant came there at about 8.30 – 9 p.m. carrying M.O.1 knife and he immediately started attacking the deceased. When P.W.1 attempted to intervene, she was pushed off. When P.W.2 intervened, he was also indiscriminately stabbed and inflicted with cut injuries. After https://www.mhc.tn.gov.in/judis 11 inflicting injuries, the appellant walked away from the scene. P.W.3 neighbour, on hearing the cry, had come there and seen the appellant moving away from the scene of occurrence. P.W.3 confirms that the appellant was enraged on the rejection of his proposal by P.W.1 and her daughter. Further, he had also avenged to finish her away. P.W.2 is an injured eye witness who had clearly spoken about the occurrence. He was also seriously injured, only due to immediate medical intervention, his life could be saved. In this case, P.Ws.1 and 2 are the eye witnesses who have clearly spoken about the act of the appellant. The medical evidence of P.Ws.5, 9, 11 and 12 and Exs.P2 to P5 and P9 confirm the injuries sustained and the treatment given to P.W.2. Ex.P3 contains the details of treatment given to P.W.2 and a scanned reproduction of the same is as follows:
https://www.mhc.tn.gov.in/judis 12 https://www.mhc.tn.gov.in/judis 13 https://www.mhc.tn.gov.in/judis 14 https://www.mhc.tn.gov.in/judis 15 https://www.mhc.tn.gov.in/judis 16 https://www.mhc.tn.gov.in/judis 17 https://www.mhc.tn.gov.in/judis 18 https://www.mhc.tn.gov.in/judis 19 https://www.mhc.tn.gov.in/judis 20
12. The evidence of P.Ws.11 and 12 and Exs.P10 and P11 confirm about the injuries and the reason for the death of the deceased Anurekha. P.W.12 the doctor who conducted post mortem has found the following injuries:
https://www.mhc.tn.gov.in/judis 21 https://www.mhc.tn.gov.in/judis 22 https://www.mhc.tn.gov.in/judis 23 https://www.mhc.tn.gov.in/judis 24 https://www.mhc.tn.gov.in/judis 25 https://www.mhc.tn.gov.in/judis 26 P.W.12 doctor opined that the deceased appear to have died of haemorrhage and shock due to vital organ injuries.
13. Though learned counsel vehemently argued that there was provocation and sought for leniency, from the evidence available, it is seen that there is nothing in the evidence by way of cross-
examination. Further, the accused had also failed to give any explanation when he was questioned under Section 313 Cr.P.C. The intensity of the injuries sustained by P.W.2 and found in the body of the deceased would prove that the appellant had committed premeditated gruesome murder.
14. As already alluded to supra, learned counsel for the appellant pressed into service Suyambukkani case (cited supra) rendered by Honourable Division Bench of this Court. This case law was pressed into service for the principle which centers around sustained provocation. Mr.C.D.Johnson, learned counsel for appellant submitted that the expression 'sustained provocation' has neither been defined nor deployed anywhere in the Code. It was coined and explained in Suyambukkani case. A careful perusal of Suyambukkani case makes it clear that the Honourable Division Bench has in fact dealt with sustained provocation theory and has added that as one of https://www.mhc.tn.gov.in/judis 27 the exceptions adumbrated qua Section 300 I.P.C. However, we are of the considered view that Suyambukkani case does not come to the aid of the appellant in the case on hand and the reason is facts are completely different. In this regard, we remind ourselves of the declaration of law made by a Constitution Bench in the celebrated Padma Sundara Rao case [Padma Sundara Rao Vs. State of Tamil Nadu reported in (2002) 3 SCC 533]. Padma Sundara Rao is a classic case as to how a case law should be relied upon by a Court. Most relevant paragraph in Padma Sundara Rao is paragraph 9 and the same reads as follows:
'9.Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 :
1972 AC 877 (HL) [Sub nom British Railways
Board v. Herrington, (1972) 1 All ER 749 (HL)]] .
Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.' https://www.mhc.tn.gov.in/judis 28
15. A careful perusal of Suyambukkani case brings to light that, that was a case where the appellant was driven to the extreme step of attempting to end her life along with her children. In this case, the Honourable Division Bench made a reference to Nallathangal Ballad which is a piece of Tamil literature where a rich lady reduced to an unbearable misery committed suicide along with her children. It was eloquently and elucidatively articulated by the Division Bench that the act of Nallathangal was extolled and not castigating leading to situation what is known as Nallathangal Syndrome. Becoming larger law prevalent, this means that Suyambukkani case turns on the principle that poverty cannot be criminalised.
16. In the case of Suyambukkani, she was married at the age of 19 to a hair dresser and blessed with two male children who were 2 ½ years and 10 months at the time of occurrence and having been driven to the brink of the society owing to extreme poverty and destitution which in turn attributable to the callousness of her spouse attempted to end her life along with her children akin to Nallathangal Ballad. Therefore, if we apply Padma Sundara Rao declaration of law, we are of the view that the facts are so completely different and so drastically different for the principle laid down by Honourable Division https://www.mhc.tn.gov.in/judis 29 Bench in Suyambukkani cannot be pressed into service or applied to the case on hand this being the cause of action which was spurned qua his proposal to marry the deceased i.e., spoken by the deceased and the mother of the deceased who deposed as P.W.1 before the trial Court. Therefore, we have no hesitation in holding Suyambukkani case does not help the appellant.
17. We also considered the evidence before us more particularly the nature of injuries inflicted on the deceased Anurekha and P.W.2. The wounds as would be evident from Ex.P3/details of treatment given to P.W.2 and Ex.P11/postmortem certificate bring to light that intention is clear. Other evidence on record does not support the theory of sustained provocation which has been carved out as an exception to Section 300 I.P.C. qua Suyambukkani supra. On a demurrer, even if the sustained provocation principle is applied, we are of the view that it does not come to the aid of the convict/appellant in the case on hand.
18. The trial Court had rightly convicted the appellant and the judgment of the trial Court is a well reasoned one. We find no reason to interfere with the finding and sentence imposed by the trial Court as the act of the appellant would not fall under any of the https://www.mhc.tn.gov.in/judis 30 exceptions.
19. In view of the above, the conviction and sentence imposed on the appellant by the learned VII Additional Sessions Judge, Chennai in S.C. No.557 of 2010 dated 04.10.2013 stand confirmed and the criminal appeal stands dismissed.
(M.S.J.) (M.N.K.J.) 13.02.2023 Index: Yes Neutral Citation:Yes mmi To
1.The VII Additional Sessions Judge, Chennai.
2.The Inspector of Police, K1 Sembium Police Station, Chennai.
3.The Public Prosecutor, High Court, Madras.
M.SUNDAR, J.
and M.NIRMAL KUMAR, J.
https://www.mhc.tn.gov.in/judis 31 mmi Crl. A. No.673 of 2018 13.02.2023 https://www.mhc.tn.gov.in/judis