Madras High Court
Thaveethu Alias Thaveethu Arputharaj ... vs State Rep. By on 13 July, 2010
Bench: M.Chockalingam, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13/07/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY Crl.A.(MD).No.7 of 2008 Thaveethu alias Thaveethu Arputharaj alias Thaveethu Kumar .. Appellant vs State rep. by Inspector of Police, Meignanapuram Police Station, Thoothukudi District. Cr.No.442/2005 .. Respondent PRAYER This criminal appeal has been preferred under Section 374 Cr.P.C against judgment in S.C.No.55 of 2006 on the file of Additional Sessions Judge, (Fast Track No.I), Thoothukudi, dated 16.05.2007 for convicting him life sentence under Section 302 IPC. !For Appellant ... Mr.A.Thiruvadi Kumar ^For Respondent ... Mr.Danieal Manoharan Addl.Public Prosecutor :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Additional Sessions Division, Fast Track Court No.I, Thoothukudi made in S.C.No.55 of 2006, 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.1,000/- and default sentence.
2. The short facts necessary for the disposal of this appeal can be stated as follows;-
i) P.Ws.1, 2 and 4 are close relatives of the deceased Dharmaraj. Prior to the occurrence, the accused attacked P.W.5, and in that transaction, P.W.5 sustained injuries. The deceased, who witnessed the occurrence, took P.W.5 to the Government Hospital for treatment. On coming to know about the same, the accused/appellant developed enmity against the deceased.
ii) At about 10 'O'clock, when the accused/appellant was just coming in the street, the accused armed with aruval, attacked the deceased indiscriminately uttering the words "How can you take Gunaraj to the Hospital and you should be finished off'. The said incident was witnessed by P.Ws.1, 2 and 4. When there was a distressing cry, neighbours gathered, and the accused ran away from the place of occurrence with the weapon of crime.
iii) P.Ws.1 2 and 4 and others engaged a car and took the deceased to the Government Hospital, where the deceased was declared dead. On receipt of the intimation, P.W.14, the Sub Inspector of Police, proceeded to the Government Hospital where he recorded the statement of P.W.1, which was marked as Ex.P1.
iv) On the strength of Ex.P1, a case came to be registered at the respondent police station in Cr.No.442 of 2005 under Section 302 of the Code.
Ex.P15, the first information report, was despatched to the Court.
v) P.W.15, the Inspector of Police of the circle took up investigation, proceeded to the spot, made an inspection in the presence of witnesses and prepared an Observation Mahazar Ex.P4 and Rough Sketch Ex.P17. He conducted inquest on the dead body of the deceased in the mortuary in the presence of the witnesses and prepared an inquest report, which was marked as Ex.P18. Besides that, from the place of occurrence, he recovered blood stained earth and sample earth, M.Os. 2 and 3 respectively, under a cover of Mahazar Ex.P5.
vi) On receipt of the requisition Ex.P2, made by the investigator, P.W.3, the Doctor, conducted autopsy on the dead body of the deceased and issued a postmortem certificate, Ex.P3 opining that the deceased died out of shock and hemorrhage due to multiple injuries sustained by him 12 to 18 hours prior to autopsy.
vii) Pending the investigation, the investigator came to know that the accused/appellant surrendered before the learned Judicial Magistrate No.2, Thoothukudi. The investigator filed a memo for police custody and the same was ordered. During interrogation, the accused came forward to give a confessional statement voluntarily and the same was recorded in the presence of witnesses. The admissible part of the confessional statement of the accused was marked as Ex.P6. Following the same, he took the investigator and produced MO-1 aruval, the weapon of crime, which was recovered under a cover of Mahazar. Then, the accused was sent for judicial remand. All the material objects recovered from the place of occurrence, from the dead body and also from the accused, 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.P10, and Serologist's report, Ex.P11, 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 15 witnesses and relied on 18 exhibits and 5 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 this 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 the prosecution has miserably failed to prove its case. Admittedly P.Ws.1, 2 and 4 are closely related to the deceased. It is the case of the prosecution that the accused attacked P.W.5 five months prior to the occurrence. The deceased, who was witnessing the occurrence, immediately took P.W.5 and admitted in the Government Hospital, and the accused had developed grudge on the conduct of the deceased and attacked him. But, P.W.5 has candidly admitted that subsequent to the earlier incident, there was no quarrel between the accused and the deceased, and thus, the prosecution was unable to indicate any motive for the act of the accused. P.W.1 has categorically admitted that the Sub Inspector of Police came to the Hospital, looked on the dead body and noted all the injuries and those injuries are actually found in Ex.P1. When this Ex.P1 is compared with the postmortem certificate Ex.P3, they are actually reproduced, and it is only a replica.
4. Added further, the learned counsel that in so far as Ex.P1 is concerned it has come into existence after all the deliberations possible. The occurrence has taken place at 10 'O'clock and it also came into existence within a short span of time, but it reached the Judicial Magistrate only at 9.00 a.m. in the next morning. Therefore, there is inordinate delay and the prosecution has no explanation to offer. Though P.Ws.1, 2 and 4 would claim that immediately after the occurrence, they lifted the dead body and all their clothes were drenched with blood, but those clothes were not recovered by the investigating officer and thus, it would be quite indicative of the fact that P.Ws.1, 2 and 4 could not have seen the occurrence at all. All would clearly indicate that the prosecution has miserably failed to prove its case.
5. The learned counsel in his further arguments would submit that even assuming that the prosecution has proved the fact that it was the accused who attacked the deceased and caused his death, the act of accused would not attract the penal provision of murder. P.W.1 candidly admitted in his evidence that prior to the occurrence, there was quarrel for about 15 minutes between the accused and the deceased which has resulted in the incident and thus, it would clearly indicate that the act of the accused was neither intentional nor premeditated, but it was due to a sudden quarrel between them. Under such circumstances, it would not attract the penal provision of murder, but it would be a culpable homicide not amounting to murder and this has got to be considered by the Court.
6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions.
7. It is not in controversy that one Dharmaraj was done to death in the incident that had taken place at 10.00 p.m. on 06.11.2005. After the case was registered by P.W.14, the Sub Inspector of Police, the investigation was taken up by P.W.15, the Inspector of Police of the circle. Following the inquest made on the dead body and preparation of inquest report, Ex.P18 the dead body was subjected to autopsy by P.W.3, who gave a categorical opinion that the deceased died out of shock and hemorrhage due to the multiple injuries sustained by him 12 to 18 hours prior to autopsy. In order to substantiate this fact, the prosecution has relied upon the postmortem certificate Ex.P3, and this fact was never disputed by the appellant/accused before the trial Court. Hence, the trial Court was perfectly correct in recording so.
8. In order to substantiate that it was the accused who attacked the deceased at the time and place of the occurrence and caused the death, the prosecution is fortunate enough to have three eye-witnesses who are P.Ws.1, 2 and 4. It is true that they are closely related to the deceased, but that cannot be a reason to discard their testimony. P.Ws.1, 2 and 4 have categorically spoken in one voice that they saw the accused/appellant coming with an aruval, and he attacked the deceased indiscriminately, caused his death and fled away. Even in Ex.P1, the complaint, given by P.W.1, there is narration of the incident. Now, the contention put forward by the learned counsel for the appellant that the Sub Inspector of Police came to the Hospital after noting the injuries found on the dead body, and Ex.P1 has been prepared with all deliberations cannot be accepted. It is an admitted position that P.W.14, the Sub Inspector of Police, on intimation from the Government Hospital as to the death of the deceased, proceeded to the Hospital, and only on verification of the death, he recorded the statement of P.W.1, which is marked as Ex.P1. Under such circumstances, the evidence of P.W.1 stood fully corroborated by the evidence of P.Ws.2 and 4. The Court is unable to look with any doubt on their evidence and the evidence of P.Ws.1, 2 and 4, the eye-witnesses, also stood full corroborated by the medical evidence.
9. Yet another circumstance which stood against the appellant/accused, is the recovery of MO-1, aruval, the weapon of crime, on the confessional statement given by him in the presence of witnesses, and one of the witnesses was also examined before the trial Court, and all would go to show that the prosecution has proved that it was the appellant/accused who attacked the deceased and caused his death, by adducing sufficient evidence.
10. In so far as the second line of argument made by the learned counsel for the appellant is concerned, the Court is able to see some force. The motive, which is attributed to the appellant/accused, was that five months prior to the occurrence, the accused attacked P.W.5, and in that transaction, P.W.5 sustained injuries, and it was the deceased who took P.W.5 to the Hospital and admitted him. The accused/appellant has grudge over the same. But, P.W.5, who sustained injury in the earlier incident, has categorically admitted that subsequent to that incident, the accused/appellant and the deceased had never quarrelled. At this juncture, the evidence of P.W.1 has got to be looked into. According to P.W.1, there was a quarrel between the deceased and the accused for 15 minutes which resulted in the accused acting so and thus, the act of the accused/appellant cannot be considered as one done with premeditation or intentional, but it was due to sudden quarrel in a public place. Under such circumstances, the 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.
11. 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 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 Additional Sessions Judge, (Fast Track No.I), Thoothukudi
2. The Inspector of Police, Meignanapuram Police Station, Thoothukudi District.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.