Madras High Court
M.Nagasundaram vs The State Rep. By on 26 November, 2007
Bench: Prabha Sridevan, S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 26/11/2007 CORAM The Honourable Mrs.Justice PRABHA SRIDEVAN and The Honourable Mr.Justice S.NAGAMUTHU Crl.A.No.555 of 2006 M.Nagasundaram ... Appellant vs The State rep. by The Inspector of Police Nainar Kovil Police Station Ramnad District ... Respondent Criminal Appeals filed under Section 374 (2) Crl.P.C. against the judgment dated 27.01.2006 rendered in S.C.No.102 of 2005 by the learned Principal District and Sessions Judge, Ramnad. !For Appellant ... Mr.A.ArivuChandran ^For Respondent ... Mr.V.Kasinathan Addl. Public Prosecutor :JUDGMENT
(The Judgment of the court was delivered by S.NAGAMUTHU,J) The appellant stands convicted under SEctions 302 and 307 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo further R.I. for one year under Section 302 I.P.C and to undergo R.I. for ten years and to pay a fine of Rs.1,000/- in default to undergo further R.I. for one year under Section 307 I.P.C. in S.C.No.102 of 2005 on the file of the learned Principal District and Sessions Judge, Ramnad by the judgment dated 27.01.2006. Challenging the said conviction and sentence, the appellant has come forward with this appeal.
2. The brief facts of the prosecution case is as follows:
i) P.Ws 1 and 2 are the daughters of the deceased, by name, Chelliah and the accused is a neighbour. In respect of a landed property, there arose a dispute between the family of the deceased and that of the accused for quite sometime and therefore, they were not in talking terms. On a previous occasion, the accused and his men attacked the brother of P.W.1 with reference to which a criminal case was registered against the accused. Thus there was a continuous ill-feeling between two families.
ii) On 13.12.2004, at about 10.30 a.m., after finishing agricultural work in the field, P.W 1 and the deceased were returning to their home. The deceased was going ahead of P.W.1. When they were passing through the field of one Kalimuthu Servai, the accused who standing in his field, used abusive words against P.W.1. The deceased questioned the same. Suddenly, the accused started mounting attack on the deceased with Aruval. He inflicted blows on the left ear, left shoulder, neck, chest and other parts. Unable to bear the said attack, the deceased fell down. Again, the appellant inflicted one more injury on the right thigh of the deceased. P.W.1 attempted to prevent further attack. At that time, the appellant cut P.W.1 on her right small finger, right chin, neck and head.
P.Ws 3, 4 and one Murugesan, who were engaged in agricultural operations in the filed of P.W.4, have witnessed the occurrence. P.W.5 is the brother of the deceased. On hearing the alarm raised by P.W.1, he rushed to the spot and found the deceased dead and P.W.1 with blood injuries. P.W.2, one another daughter of the deceased, who was at home, on hearing about the occurrence, rushed to the spot and found the deceased dead and she also found P.W.1 being cut by the accused. The accused fled away from the place of occurrence with weapon.
iii). P.W.5, took P.W.1 in a tractor to Nainar Kovil Police Station, which is at a distance of 7 K.Ms from the place of occurrence. At 12.15 p.m., P.W.15, who was the then Special Sub Inspector of the said Police Station, recorded the statement of P.W.1 and the same was witnessed by P.W.5. Ex.P.1 is the said complaint. On the said complaint, P.W.15, registered a case in Crime No.114 of 2004 under Sections 324, 307 and 302 I.P.C. against the appellant. Ex.P.1.4 is the First Information Report. Then he forwarded EXs.P.1 and P.14 through P.W.12 to the jurisdictional Magistrate at Paramakudi, who in turn received the same at 3.00 p.m. Then he sent P.W.1 to the Paramakudi Government hospital for treatment with a police memo.
iv) P.W.1 went to Paramakudi Government hospital at 10.35 a.m. where he was treated by P.W.9. He found the following injuries:
"1.A horizontal incised wound with clear cut margins over lease of nape of neck 3 cm X 2 cm X 5 cm deep. Patient is not able to use both upper and lower limbs. fracture cervical spine fracture and spinal card injury cervical level.
2. Over left parieto-occipital regional 6 cm X 1 cm X 2 cm a lacerated wound with clear cut edges for a length of 3 cm bone on reflection is seen.
3. A lacerated wound over right palm 8 cm X 3 cm X bone deep 2 cm below little finger extending laterally below ring and middle right finger.
4. An incised horizontal cut wound over right cheek entirely contused into full extent 4 cm X 3/4 cm."
Since the patient was in deep shock due to the injuries, she was referred to the Government Rajaji Hospital, at Madurai. Ex.P.7 is the wound certificate of P.W.1. From 13.12.2004 at 5.30 p.m. onwards P.W.1 was treated as in patient in the said hospital. She was discharged only on 12.01.2005. According to P.W.9, the injuries sustained by P.W.1 were grievous.
v) P.W.16 took up the investigation and visited the place of occurrence at 1.30 p.m. and prepared the Observation Mahazar Ex.P.2 and a rough sketch Ex.P.15 showing the place of occurrence in the presence of P.W.6 and another witness. Then he recovered M.O.2-blood stained earth, M.O.3-Sample earth and M.O.4-a pair of cheppel from the place of occurrence under Mahazar Ex.P.3 in the presence of the same witnesses. He conducted inquest on the body of the deceased and prepared the inquest report Ex.P.16. During the inquest, he examined P.Ws 1 to 5 and few more witnesses. On completing inquest, P.W.16 sent the body of the deceased for post mortem examination with a requisition through a Head Constable to P.W.9.
vi) P.W.9 conducted autopsy on the body of the deceased and found the following injuries:
"1. Over left anterior neck, a lacerated wound of size 6 cm X 8 cm above left clavicle goes to a depth of 5 cm depth (Shelving of the wound) goes from right side to left side, the maximum depth is on left side.
2. There is an abrasion of 8 cm length X 1 cm width continuous with the lateral edge of the wound.
3. A cut wound with clean incised edges of dimension 3.5 cm X 1.5 cm shelving from left to right going to a depth of 4 cm, the wound lying lateral to (2) over left anterior shoulder the disposition of the wound being horizontal.
4. An elipitical edged horizontally placed wound with incised margin of dimension 4 cm X 1 cm going to a depth of 3 cm all along, over left chest 1 cm lateral to sternum, 4 cm interior to injury (1).
5. There is another cut wound lying horizontally2 cm X 3/4 cm X 3/4 cm over left anterior shoulder below acromion.
6. Another wound 1 cm X 1 cm a punctured wound going to a depth of 6 cm over left lateral chest. The wound 1 was laid open left pectoral major and minor transected with clear cut edges.
7. This is a gross leaved wound over right thigh along the entire medial and anterior thigh(right) 12 cm X 3 cm The depth being 8 cm, the depth increases from below upwards, the structure of muscles of the anterior and medial compartment source through and through clear cut edges with smoothness above and below femoral AA lateral. On dissection of thigh(right) the femur is fractured into pieces. The cut edges of the right thigh muscles reveal huge blood clot 10 cm X 2 cm as can be seen through the gaping wound.
8. On the left side extending from the lateral edge of left eye brow to left occipit, horizontally placed cut wound with clear cut edges to a dimension of 12cmX 2 cm is seen with left ear neatly incisionally cut in its middle. viz. concha-hyaline cartilages clean cut, left temporal muscle clearly cut, exposing the underlying skull.
Finally, he opined that the death was caused due to shock and hemorrhage due to the injuries found on the body of the deceased.
vii). On 14.12.2004 at about 5.30 a.m., in the presence of P.W.8 and another witness, P.W.16 arrested the appellant and on such arrest, he volunteered a confession, which was duly reduced into writing, in which the appellant disclosed about the place where he had hidden the Aruval. Ex.P.5 is the admissible portion of the said statement. Pursuant to the said disclosure statement, the appellant took P.W.16 and the witnesses to Kalladiyenthal riverbed, identified the place and produced M.O.1-Aruval and P.W.16 recovered the same under Ex.P.6, Mahazar in the presence of the same witnesses. Since the accused also had injuries, he forwarded him to the Government hospital at Paramakudi.
viii) P.W.7, a Senior Surgeon at the said hospital treated him at 1.00 p.m. He was told by the appellant that he was attacked by four known persons on 14.12.2004 at 7.45 a.m. with sticks. He found the following injuries:
"1. An abrasion 5 cm X 3 cm over left side of vertex.
2. contusion 3 cm X 3 cm over right angle of mandible."
He was treated as out patient and according to P.W.7, the injuries are simple in nature.
ix) Continuing the investigation, P.W.16, examined few more witnesses including the doctors and made a requisition to the Court to forward the material objects for chemical examination. Ex.P.12 is the chemical analysis report and Ex.P.13 is the serology report. According to him, before the inquest was conducted, he had arranged to take photographs of the dead body and the place of occurrence. Exs.M.O.10 series are the photographs and M.O.11 series are the negatives. On completing the investigation, he laid charge sheet on 10.04.2005 under Sections 302 and 307 I.P.C. against the appellant.
3. The trial Court framed charges under Sections 302 and 307 I.P.C. against the appellant. Since the appellant pleaded not guilty, he was put on trial. On the side of the prosecution 16 witnesses were examined, 16 documents were exhibited and 11 material objects were marked, during trial. When the appellant was questioned under Section 313 Cr.P.C in respect of the incriminating evidences found against him, he denied the same as false. He has neither examined any witness nor marked any document on his side. Having considered the materials available on record, the trial Court has found the appellant guilty and sentenced him as stated herein above. The appellant challenged the same in this appeal.
4. The learned counsel for the appellant would submit that there is no consistent evidence in respect of the place of occurrence and the time of occurrence, which creates serious doubt in the case of the prosecution. He would further submit that in the light of the admissions made by P.W.s 3 and 4 that the appellant was caught hold by the villagers on the spot at the time of occurrence, on the date of occurrence itself, the theory of the prosecution that the appellant was arrested only on 14.12.2004, he volunteered a confession and on that confession the recovery of Material object was made, cannot be believed. The learned counsel would further submit that the motive alleged by the prosecution also has not been proved beyond reasonable doubt. He would further submit that the serology report Ex.P.13, does not support the case of prosecution. In nutshell, he would submit that there are lot of improbabilities and contradictions in the evidences adduced by the prosecution and therefore, the appellant is entitled for acquittal.
5. Per contra, the learned Additional Public Prosecutor would submit that P.W.1 is an injured witness, who has sustained grievous injuries necessitating treatment for about one month as inpatient and there are no reasons to disbelieve her presence at the place of occurrence. He would further submit that P.Ws 3 and 4, who are independent witnesses have supported the case of prosecution and there are no reasons to dis-trust their evidence. In respect of the date of arrest of the appellant, the learned Additional Public Prosecutor would submit that P.Ws 3 and 4 have stated that the appellant was arrested by the police on the same day due to inadvertence, which cannot be given weightage. In respect of place of occurrence and the time of occurrence, the learned Additional Public Prosecutor would submit that there is no contradiction or improbabilities, much less, the material improbabilities so as to dis-believe the evidence of eye witness-P.W.1, who is an injured witness.
6. We have considered the rival contentions and also perused the records carefully.
7. P.Ws 1 and 2, who are the daughters of the deceased have spoken to about the motive. The said motive stated by P.Ws 1 and 2 has not been disputed during cross examination of the said witnesses. Thus the motive is almost an admitted fact.
8. In respect of the occurrence, the presence of P.W.1 at the place of occurrence cannot be doubted, because P.W.1 has sustained grevious injuries in the same occurrence, in which the deceased sustained injuries, and the defence has not denied during the cross examination that P.W.1 was along with the deceased at the time of occurrence. The evidence of P.Ws 3 and 4, who were, then working in the filed of P.W.4, also deserves acceptance. They have clearly stated that P.W. 1 and the deceased were proceeding and at that time the accused developed quarrel and ultimately attacked the deceased and P.W.1 with aruval. P.Ws 3 and 4 cannot be stated to be interested witnesses. A careful scrutiny of the evidence of P.Ws. 3 and 4 would go to show that their evidence is quite natural, thereby inspiring confidence of this Court. It is also to be seen that P.W.1 has told P.W.9, the doctor that she sustained injuries at the hands of the appellant when her father was done to death by him by inflicting injuries with Aruval. The learned counsel for the appellant would point out that this witness, though claims to have gone to the Police Station first and then went to the hospital with a memo from the police, P.W.9 would state that she did not come with such police memo. In Ex.P.7 also there is no mention about this. Of course, there is no proper explanation as to why there is no mention made about the memo in Ex.P.7. But, on that score, the presence of P.W.1 at the place of occurrence and her sustaining injuries in the same occurrence cannot be doubted. The contention of the learned counsel is that though it is the case of prosecution that the occurrence took place at 10.30 a.m., P.W.1 had told P.W.9 that she was attacked at 9.30 a.m., which according to him, is a material contradiction in respect of the time of occurrence. It is seen from the evidence that P.W.1 is not a literate person so as to give the exact time of occurrence. Admittedly, she is a villager and an illiterate woman. Therefore, it is quite natural for her to commit such kind of minor error while assessing the time of occurrence and informing the same to the doctor and the police.
9. Regarding the place of occurrence, the learned counsel would submit that though it is the positive case of the prosecution that the occurrence was at Kalimuthu Servai's field, in Ex.P.7, it has been mentioned as if P.W.1 sustained injuries at her field. But, we are not prepared to give much importance to this minor contradiction. The contents of Ex.P.3 and the evidence of P.W.6 have not been seriously challenged during cross examination. It is also to be considered that after all, the field of Kalimithu Servai and that of the deceased are very nearer to each other. Above all, when P.W.9 examined P.W.1, he found her in deep shock due to the injuries. So, when a person is in such a deep shock, it is quite natural for her to make minor mistakes while mentioning about the place of occurrence and the time of occurrence. Considering the fact that the evidence of P.W.1, whose presence at the place of occurrence has not been disputed, is otherwise believable since the same inspires the fullest confidence of the Court and since the same draws adequate corroboration from the evidences of P.Ws 3 and 4, we have to necessarily hold that the deceased as well as P.Ws. 1 were attacked only by the appellant as it has been stated by the prosecution and there arise no doubt about this.
10. P.W.9 has found 8 cut injuries on the body of the deceased. The injury to neck has cut jugular vein and other vital organs. Though it has not been elicited from P.W.9 that the injuries found on the deceased would have been sufficient to cause death or not, we are satisfied that the injury to neck, cutting the jugular vein and the injury No.9 are necessarily fatal. Injury No.8 is also a grevious one, wherein the left femur was cut and corresponding internal muscles were also found cut. The left temporal bone was found fractured due to the injury No.9. From the weapon used, the number of injuries caused and location of the injuries and the nature of injuries, we are of the clear opinion that the appellant had intention to cause death of the deceased. Therefore, the act of the appellant falls within the first limb of Section 300 I.P.C so as to warrant punishment under Section 302 I.P.C. for having caused the death of the deceased.
11. As concluded, P.W.1 was cut indiscriminately by the appellant because she attempted to prevent him from further attacking the deceased. Admittedly, she underwent treatment for about one month as in patient from 13.12.2004 to 12.01.2005. The injury No.1 was found on the back of the neck. The second injury found on the head, was bone deep. The appellant would have continued to attack P.W.1 to kill her but for the arrival of P.Ws 3 and 4 to the scene of occurrence. The fact that he has caused five cut injuries on P.W.1 and the fact that two injuries were caused on the vital parts, namely, neck and hear, would go to establish that the appellant had the intention to kill P.W.1 also. The act of the appellant, attacking P.W.1, is an offence punishable under Section 307 I.P.C.
12. The last contention of the learned counsel for the appellant that the appellant would not have been arrested on 14.4.2004 at 5.30. a.m. as it is stated by the prosecution, in view of the positive evidence of P.WS 3 and 4 that the appellant was caught hold by the villagers soon after the the occurrence at the place of occurrence itself, is to be accepted. The learned Additional Public Prosecutor is not in a position to counter the said argument of the learned counsel for the appellant.
13. Therefore, we are not prepared to accept the theory of the prosecution that the appellant was arrested on 14.12.2004 and on his confession, M.O1, Aruval was recovered. Because we disbelieve the said theory of the prosecution, we cannot throw out the case of prosecution as false.
14. The learned counsel would also add that the injury on the accused has not been explained. A perusal of Ex.P.4 would show that the said injury was sustained by him on 14.12.2004 at 7.45 a.m, according to his statement. When it is the evidence of P.Ws 3 and 4 that the appellant was taken into custody by the police on 13.04.2004 itself, the case of the prosecution that he sustained injuries on 14.12.2004 at about 7.45 a.m., cannot be accepted. However, considering the fact that the injuries are very minor in nature, such as an abrasion on the left side of vertex and a contusion on the right ankle of mandibles, we are of the opinion that the non-explanation of the said injuries by the prosecution, is not a serious flaw in the case of the prosecution, so as to discard the evidence of P.W1, the injured eye witness, which draws corroboration from the evidences of P.W.3 and 4.
15. For all the reasons stated above, we are in conformity with the findings of the lower Court that the appellant and the appellant alone, has killed the deceased and has made an attempt on the life of P.W.1. The lower Court has rightly convicted the appellant under Sections 302 and 307 I.P.C and has imposed proper punishment, which does not require any interference at all.
16. In the result, the appeal fails and the same is dismissed. The conviction and sentence imposed by the lower court is confirmed.
pal To
1. The Principal Dist. & Sessions Judge, Ramnad.
2. The Inspector of Police Nainar Kovil Police Station Ramnad District
3. The Public Prosecutor, Madurai Bench of Madras High Court,Madurai.