Murugan vs State on 17 March, 2006

[Cites 8, Cited by 0]

Madras High Court

Murugan vs State on 17 March, 2006

The appellant, who is the accused in Sessions Case No.56 of 2001 on the file of the Additional District and Sessions Judge (Fast Track Court No.I), Madurai, has filed this appeal challenging the judgment, dated 27.03.2002, convicting him under Sections 302 and 307 I.P.C. and sentencing him to undergo life imprisonment under Section 302 I.P.C. and seven years rigorous imprisonment under Section 307 I.P.C. The sentences were ordered to run concurrently.

2. The charge against the appellant is that on account of the prior enmity that existed between the appellant and the deceased Karunanidhi, on 22.09.2000 at 8.00 a.m. at Aranmanai Coffee Estate, Puliyuthu, the appellant armed with an aruval (M.O.9), with an intention to cause the death of the deceased, cut him indiscriminately on his front neck and right cheek by saying "get lost with this", which resulted in his instantaneous death and in the course of the same transaction, the appellant cut P.W.3 Venkitammal, his first wife, with the same weapon, on her left shoulder by saying "get lost with this".

3.1. The brief facts of the prosecution case are as follows:

The motive for the occurrence according to the prosecution is that the deceased and the first wife of the appellant, who is none the less P.W.3, are in illicit intimacy with each other.

3.2. P.W.1 Thangamuthu is the son-in-law of the deceased. P.W.2 Mythili is the wife of P.W.1.

3.3. Deceased was working along with the appellant, P.W.3 (appellant's wife), P.W.4 Subbuthai and P.W.5 Rasappan, as Accountant in Aranmanai Coffee Estate, Puliyuthu.

3.4. Since the appellant married one Eswari as second wife, the relationship between the appellant and P.W.3 was not cordial. Whenever problem arose between them, the deceased used to intervene and pacify P.W.3, as a result of which, the appellant started suspecting the relationship between his first wife P.W.3 and the deceased.

3.5. Day prior to the occurrence i.e. on 21.09.2000 at 6.00 p.m., the appellant, as spoken by P.W.1, came with open threat that he would kill the deceased. On the fateful day i.e. 22.09.2000 at 6.50 a.m., deceased and P.Ws.1 and 2 went to the coffee estate and got down at Puliyuthu bus stop. The appellant came in the opposite direction hiding with him M.O.9 aruval. By using filthy words, the appellant cut the deceased with M.O.9 aruval on his neck followed with indiscriminate cuts, which resulted in his instantaneous death, as witnessed by P.Ws.1 and 2 directly.

3.6. Not stopping with that, the appellant also proceeded to kill his first wife P.W.3 and cut her with the same weapon on her left shoulder, as witnessed by P.Ws.1, 4 and 5 directly.

3.7. P.W.1 immediately lodged a complaint Ex.P1 to P.W.11 Head Constable, Kurangani Police Station and the same was registered by P.W.11 in Crime No.27 of 2000 under Sections 302 and 324 I.P.C. Thereafter, he prepared Ex.P14 printed first information report and forwarded the same to the jurisdictional Magistrate and to the higher police authorities through P.W.12 Grade I Police Constable.

3.8. Based on Ex.P14, P.W.13, Inspector of Police, took up the investigation and proceeded to the scene of occurrence where the body of the deceased was lying, at 12.15 p.m. on 22.09.2000 and prepared Ex.P2 observation mahazar and Ex.P15 rough sketch in the presence of P.W.6 and another. Thereafter, P.W.13 also conducted inquest and prepared Ex.P16 inquest report.

3.9. In the presence of the same witnesses, P.W.13 recovered M.O.1 bloodstained earth, M.O.2 sample earth and M.O.5 bloodstained plastic bag under Ex.P3 mahazar attested by the same witnesses. Thereafter, the body was sent through P.W.8 Police Constable for postmortem. He also recovered M.Os.6 to 8 personal apparels found on the body of the deceased under Form 95 produced by P.W.8.

3.10. P.W.13 went to the place where P.W.3 was attacked and prepared Ex.P4 observation mahazar and Ex.P17 rough sketch in the presence of the same witnesses. He recovered M.O.3 bloodstained earth, M.O.4 sample earth under Ex.P5 mahazar attested by the same witnesses.

3.11. In the meanwhile, the injured P.W.3 was taken to the hospital by neighbours and P.W.7 Dr.Ravindran, Assistant Surgeon, Government Hospital, Bodinayakanur, examined and treated her at 11.00 a.m. on the same day. As per his statement, P.W.3 sustained a a cut injury over her left shoulder measuring 10cm x 8cm x 4cm deep dividing the deltoid muscle and left shoulder joint and exposing the bones. Since the injury was grievous in nature, P.W.7 referred the case of P.W.3 to Government Hospital, Madurai for better treatment. P.W.13 examined P.W.3 in the hospital and recorded her statement.

3.12. P.W.7 also conducted autopsy over the body of the deceased at 5.10 p.m. on the same day. As per the postmortem certificate Ex.P6, there were four deep cut injuries found on the body of the deceased and the death was due to the injuries caused on the deceased.

3.13. On 23.9.2000 P.W.13 arrested the appellant. The appellant voluntarily gave a confession statement in the presence of P.W.10 and another. Ex.P8 is the admissible portion of the statement, pursuant to which, M.O.9 aruval was recovered under Ex.P13 mahazar attested by P.W.10 and another.

3.14. P.W.13 sent the material objects with Ex.P8 requisition to the Court to subject them for chemical analysis and the same were sent to the laboratory under Ex.P9 Court's letter. Exs.P10 and P11 are the Chemical Analysis Report and the Serologist Report respectively. He examined the witnesses and recorded their statements. On completion of the investigation, he filed a final report against the appellant for the offences punishable under Sections 302 and 307 I.P.C.

4.1 Before the Sessions Court, on behalf of the prosecution, P.Ws.1 to 13 were examined as witnesses and Exhibits P1 to P17 and material objects M.O.1 to M.O.9 were marked.

4.2 The accused was questioned under Section 313 Cr.P.C. in respect of the incriminating circumstances appearing against him, but he denied everything. The accused neither examined any witness nor marked any document on his side.

5. On consideration of the oral and documentary evidence available on record, the learned Sessions Judge convicted and sentenced the appellant as referred to earlier. Hence, the appeal.

6.1. Mr.Gurudoss, learned counsel appearing for the appellant, is not challenging the findings of the learned Sessions Judge as to the occurrence, nor the motive behind the occurrence or the mode of commission of the crime; on the other hand, attempts to take advantage over the findings, motive and mode of commission of the offence and seeks a modification of the conviction and sentence imposed on the appellant.

6.2. Mr.Gurudoss, learned counsel for the appellant contends that even according to the prosecution case, the crime in question would fall under the first exception to Section 300 I.P.C. Even as per the evidence of P.Ws.1, 2 and 4, the appellant committed the crime on account of the suspected illegal intimacy between his first wife P.W.3 and the deceased, who used to intervene and pacify P.W.3, whenever any dispute arose between the appellant and his first wife P.W.3.

6.3. Referring to the evidence of P.Ws.1 and 2, the learned counsel for the appellant contends that the appellant got proved not only against the deceased, but also against P.W.3, on account of the suspected illegal intimacy.

7. Per contra, Mr.K.Radhakrishnan, learned Additional Public Prosecutor, placing reliance on the reasoning that weighed the learned Sessions Judge and the findings arrived thereon, contends that the crime in question is nothing but murder, as there was a clear intention by the appellant/accused to do away the deceased as well as his first wife P.W.3, as he declared in both the cases by saying "get lost with this", while committing the respective attack.

8. We have given careful consideration to the submissions of both sides in the light of the evidence available on record and the materials placed before us.

9. The point that arises for our consideration is whether the crime in question is a murder or culpable homicide not amounting to murder, in which case, whether the crime in question would fall under first exception to Section 300 I.P.C.

10. The case of the prosecution that P.Ws.1 and 2 witnessed directly the attack made by the appellant on the deceased and similarly P.Ws.1, 4 and 5 witnessed the attack on P.W.3 is not seriously disputed by the learned counsel for the appellant. Similarly, the evidence of P.Ws.1 and 2 that the appellant attacked the deceased as well as his first wife P.W.3, suspecting their illicit intimacy, as the deceased used to intervene and pacify P.W.3 whenever any misunderstanding arose between her and the appellant, apparently after the second marriage of the appellant with one Eswari, as spoken to by P.Ws.1 and 2, is also not disputed by the defence.

11.1. Therefore, the only motive, as admitted by both sides for committing the crime in question, is the suspected illegal intimacy between the deceased and P.W.3. As rightly pointed out by the learned counsel for the appellant, the appellant got provoked due to the suspected illegal intimacy between the deceased and P.W.3, which formed the basis for the crime to cut the deceased, as directly witnessed by P.Ws.1 and 2, and immediately thereafter to cut his first wife P.W.3 also, as witnessed by P.Ws.1, 4 and 5, we are satisfied that the appellant got provoked on account of the suspected illicit intimacy between the deceased and P.W.3, which fact is not disputed even by the prosecution, because as and when any misunderstanding arose between P.W.3 and the appellant, after the second marriage, the deceased used to intervene and pacify P.W.3.

11.2. The motive behind the commission of the crime, as put forth by the prosecution and as rightly pointed out by the learned counsel for the appellant, is not merely frivolous and baseless, but strong and vigour, which had provoked the appellant not only to attack the deceased, but also his first wife P.W.3, by using the same weapon viz., M.O.9 aruval and the same words viz., "get lost with this". In fact, P.W.3 sustained a cut injury over her left shoulder measuring 10cm x 8cm x 4cm deep dividing the deltoid muscle and left shoulder joint and exposing the bones and since the injury was grievous in nature, P.W.7 Doctor referred the case of P.W.3 to Government Hospital, Madurai for better treatment. Therefore, appreciating the contention of the learned counsel for the appellant that the case would fall under first exception to Section 300 I.P.C., we hold that the crime in question is nothing but culpable homicide not amounting to murder and the appellant shall be convicted under Section 304 Part-I I.P.C. instead of 302 I.P.C.

12. Coming to the conviction of the appellant under Section 307 I.P.C. and sentencing him to undergo rigorous imprisonment for seven years, we are unable to accept the contention of the learned counsel for the appellant that the appellant caused only simple injury on P.W.3 based on the superficial opinion of Medical Officer, because it runs contra to the material available on record, viz., Ex.P7 wound certificate, wherein it is clearly stated that P.W.3 sustained a cut injury over her left shoulder measuring 10cm x 8cm x 4cm deep dividing the deltoid muscle and left shoulder joint and exposing the bones, which apparently seems to be grievous in nature. Therefore, we are not inclined to either interfere or alter the conviction and sentence imposed on the appellant under Section 307 I.P.C. and the same are liable to be confirmed.

13. In view of the foregoing reasons, we set aside the conviction and sentence imposed on the appellant by the learned Sessions Judge under Section 302 I.P.C. and instead the appellant/accused is convicted under Section 304 Part I I.P.C. and sentenced to undergo rigorous imprisonment for seven years. The conviction and sentence imposed on the appellant under Section 307 I.P.C. are confirmed. The sentences are directed to run concurrently. The appeal is partly allowed to the extent indicated above.

ATR Copies to

1. The Additional District & Sessions Judge, (Fast Track Court No.I), Madurai.

2. The Inspector of Police, Kurangani Police Station.

3. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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