Madras High Court
P.Sekar Alias Gunasekar vs State By on 13 July, 2010
Author: M.Chockalingam
Bench: M.Chockalingam, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13/7/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY CRL.A.(MD) No.398 of 2009 P.Sekar alias Gunasekar .. Appellant vs State by Inspector of Police Taluk Police Station Kumbakonam Thanjavur District Crime No.11/2009 .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge cum FTC, Thanjavur, made in S.C.No.96/2009 dated 26.10.2009. !For Appellant ... Mr.M.Karunanithi ^For Respondent ... Mr.N.Senthur Pandian Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court, Thanjavur, made in S.C.No.96 of 2009 whereby the sole accused/appellant stood charged under Sections 449, 302, 323 and 326 of IPC, tried, found guilty under Sections 449, 302, 323 and 324 of IPC and awarded 10 years Rigorous Imprisonment along with a fine of Rs.1000/- and default sentence under Sec.449 of IPC, life imprisonment along with a fine of Rs.1000/- and default sentence under Sec.302 of IPC, 1 year Rigorous Imprisonment under Sec.323 of IPC and 3 years Rigorous Imprisonment under Sec.324 of IPC.
2.The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the mother of the deceased Manjula. Manjula was given in marriage to one Rathinavelu, pursuant to the love affair. They had two children. They are P.Ws.2 and 3. Rathinavelu was working in a welding shop at Patteeswaram. The accused was also working with him. They were close friends.
Before one year, Rathinavelu went to Malaysia in connection with a job which he secured and for which the accused/appellant borrowed money and helped him. After Rathinavelu left for Malaysia, the appellant who was also staying over nearby, developed illicit intimacy with Manjula, and it came to the knowledge of P.W.1, who warned her. Despite the same, it continued.
(b) On the date of occurrence, that was 6.1.2009, at about 6.30 A.M., P.W.1 was taking water from the street pipe. When she was just getting inside, the accused entered into the house. At that time, Manjula shouted at him "You should go out, and if not I will call all". On hearing this, he uttered the words "If you are alive, you will call. Then I will finish off you". So saying, he took an aruval from his waist and attacked her. P.W.1 shouted not to cut. P.Ws.2 and 3 who were sleeping, woke up and noticed the same. Both P.Ws.2 and 3 also sustained injuries in the course of the same transaction. Then the accused fled away from the place of occurrence. Manjula died at the spot.
(c) P.W.1 went to the respondent police station, where P.W.15, the Sub Inspector of Police, was on duty, to whom she gave Ex.P1, the report, on the strength of which, a case came to be registered in Crime No.11 of 2009 under Sections 449, 302 and 324 of IPC. The printed FIR, Ex.P14, was despatched to the Court. P.Ws.2 and 3 were sent to the hospital for treatment.
(d) On receipt of the copy of the FIR, P.W.16, the Inspector of Police of that Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P15. Then he conducted inquest on the dead body of Manjula in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P16. The dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy.
(e) Both P.Ws.2 and 3 were examined by P.W.10, the Doctor, who has issued the wound certificates, Exs.P8 and P9 respectively. X-rays were also taken for P.W.3.
(f) P.W.11, the Assistant Surgeon, attached to the Government Hospital, Kumbakonam, on receipt of the said requisition, has conducted postmortem on the dead body of Manjula and has given his opinion in Ex.P10, the postmortem certificate, that the deceased would appear to have died of shock due to injury to major blood vessels in the neck and trachea, and death would appear to have occurred about 6 to 12 hours prior to postmortem.
(g) Pending investigation, the accused was arrested on 8.1.2009. He came forward to give a confessional statement. The same was recorded in the presence of witnesses. Ex.P4 is the admissible part. He also produced an aruval, M.O.1, which was recovered under a cover of mahazar. Then he was sent for judicial remand. The material objects recovered from the place of occurrence and from the dead body, and also M.O.1, the weapon of crime, were sent to the Forensic Sciences Department for analysis. Accordingly they were subjected to which brought forth two reports namely Ex.P12, the chemical analyst's report, and Ex.P19, the serologist's report. On completion of investigation, the Investigator filed the final report.
3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 16 witnesses and also relied on 21 exhibits and 10 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the charges levelled against him and hence found him guilty and awarded the punishment as referred to above. Challenging the same, the appellant has brought forth this appeal before this Court.
4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, P.Ws.1 to 3 are shown as eyewitnesses; that apart from them, number of independent witnesses were shown to be present at that time, but no one was examined; that as far as P.W.1 is concerned, she is the mother of the deceased, and she had got a grudge which she developed against the appellant/accused on the ground that the deceased developed illicit intimacy with him; that there was an illicit intimacy between the deceased and the appellant, and hence she has given false evidence; that so far as P.Ws.2 and 3 are concerned, admittedly, they were actually sleeping at the time of occurrence and hence they could not have seen the occurrence at all.
5.Added further the learned Counsel that the ocular testimony brought forth by the prosecution did not get corroboration from the medical opinion canvassed; that the postmortem Doctor's evidence was not actually in support of the prosecution; that the witnesses could not account the injuries as found in the postmortem certificate; that apart from that, the documents in respect of the alleged arrest, confession and recovery were all created in order to strengthen the prosecution case, and thus the prosecution has miserably failed to prove its case.
6.The learned Counsel in the second line of argument would urge that even if the factual position as put forth by the prosecution is true, the act of the accused would not attract the penal provision of murder and it was only a culpable homicide not amounting to murder; that in the instant case, admittedly, the husband of Manjula namely Rathinavelu, and the appellant were close friends, and it was the accused who borrowed money with which Rathinavelu left for Malaysia for getting a job; that under the circumstances, while they were living so, they had intimacy; that it is only on the false hope given by the deceased Manjula, he has borrowed money and has also given to her husband Rathinavelu, and he was also liable to pay the debit; that on the day, when he attacked her with aruval, he also uttered that she has dammed his life; that he was actually provoked by the circumstances, and hence the act of the accused would not attract the penal provision of murder, but only due to provocation what was actually passing in his mind, it was done; that at that time, she also shouted at him and used ugly words by which he was provoked and he has acted so; that it was not an act of murder but only culpable homicide not amounting to murder, and it has got to be considered by this Court.
7.Added further the learned Counsel that the accused was actually aged 20, on the date of occurrence that was 6.1.2009; that it is also found in Exs.P4 to P6 and also the evidence of P.W.1; that the judgment was rendered by the trial Court on 26.10.2009, on which date he has not completed 21 years; that under the circumstances, if the Court comes to the conclusion that the factual position as put forth by the prosecution, was proved, then he is entitled to have the benefit of the Tamil Nadu Borstal School Act, 1925, and he must be sent to the Borstal School; that now he has completed 21 years, and under the circumstances, he should be set at liberty.
8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
9.It is not in controversy that one Manjula the daughter of P.W.1 and the wife of one Rathinavelu, was done to death in an incident that had taken place on 6.1.2009. Following the inquest made by the Investigator, the dead body was subjected to postmortem by P.W.11, the Doctor. He has given a, opinion as a witness before the Court and also through the contents of the postmortem certificate that she died out of shock due to injury to major blood vessels in the neck and trachea. The fact that Manjula died out of homicidal violence was never disputed by the appellant before the trial Court, and hence the trial Court was perfectly correct in recording so.
10.In order to substantiate the charges, the prosecution examined three witnesses. P.W.1 is the mother and P.Ws.2 and 3 are the children of the deceased Manjula. It is true that P.Ws.1 to 3 are closely related to the deceased. But, that cannot by itself be a ground to reject the testimony, and before accepting the same, the Court must apply the test of careful scrutiny. Even after the application of the test, this Court is satisfied that the evidence of these witnesses has to be accepted. P.W.1 has categorically stated that on the date of occurrence, she was taking water from the public tap, and she went inside, and at that time, the accused also followed her, and Manjula was shouting at him that he should immediately go out, otherwise she would call all. Provoked by the words uttered by her, he took the aruval hidden and attacked her as a result of which she succumbed to the injuries. P.Ws.2 and 3 on hearing the noise, woke up, and he has also attacked them, and they also sustained injuries. P.Ws.2 and 3 though they are child witnesses, have also spoken about the occurrence. The availability of the appellant and the attack made by him on the deceased and also on P.Ws.2 and 3 were all spoken to by these witnesses. Under the circumstances, this ocular testimony projected by the prosecution stood fully corroborated by the medical evidence in respect of the cause of death as put forth by the Medical Person and also the contents of the postmortem certificate and also the wound certificates filed in respect of P.Ws.2 and 3. Yet another circumstance was the recovery of the weapon of crime namely aruval, following the confessional statement given by the appellant/accused. The same was actually proved through the necessary evidence before the trial Court. In such circumstances, it can be well stated that the prosecution has brought home the guilt of the accused beyond reasonable doubt, and thus the trial Judge was perfectly correct in finding him guilty under Sections 449, 302, 323 and 324 of IPC.
11.Insofar as the second line of contention is concerned, this Court is able to see force in the same. From the materials available, it would be quite evident that Rathinavelu, the husband of Manjula, and also the appellant/accused were close friends, and they were working together. The appellant/accused borrowed money and gave to Rathinavelu enabling him to go to foreign country to secure a job, and when Rathinavelu was absent, both the appellant and Manjula developed illicit intimacy, and this was warned by P.W.1, the mother of Manjula. While the matter stood thus, on the date of occurrence, the appellant/accused entered into the house, and at that time, Manjula shouted at him that he should go out, otherwise she would call all. On hearing this, he has uttered that because of her, his entire life was dammed, and so saying, he took the aruval and attacked her. All would clearly indicate that it was passing in his mind that it was she who was responsible for the borrowal, and also after developing illicit intimacy with him, when he made entry, she shouted that he must go out, otherwise she would call all. This has provoked him. It can be well stated that it was not his intention or premeditation to commit the act of murder. It was only spur of the moment, he got provoked and attacked her. Under the circumstances, the act of the accused would not attract the penal provision of murder, but would be a culpable homicide not amounting to murder for which he has got to be found guilty under Sec.304 (Part I) of IPC, and awarding a punishment of 7 years Rigorous Imprisonment would meet the ends of justice.
12.Insofar as the next contention that the commission of the offence was on 6.1.2009, and the judgment was dated 26.10.2009, and it could be seen from Exs.P4 to P6, and also the evidence of P.W.1, he was 20 years old, and he should be sent to the Borstal School under that enactment, the same cannot be countenanced. From the transfer certificate filed on the side of the prosecution, it could be well seen that he was born on 22.2.1988. The judgment was rendered by the trial Judge on 26.10.2009, and thus he had completed 21 years of age. Under the circumstances, this Court is of the considered opinion that it is not a fit case where the provisions of that enactment could be applied.
13.Accordingly, the conviction and sentence of life imprisonment imposed on the appellant by the trial Court under Sec.302 of IPC, are set aside, and instead he is convicted under Sec.304 (Part I) of IPC and is directed to suffer 7 years Rigorous Imprisonment. The fine amount imposed by the trial Court, will hold good.
14.While confirming the conviction of the appellant under Sec.449 of IPC, the sentence of 10 years Rigorous Imprisonment imposed on him by the trial Court, is modified, and he is directed to suffer 7 years Rigorous Imprisonment for the same. The fine amount imposed by the trial Court, will hold good.
15.The conviction and sentence imposed by the trial Court on the appellant under Sections 323 and 324 of IPC are confirmed.
16.The sentence already undergone by the appellant shall be given set off. The sentences are ordered to run concurrently.
17.In the result, this criminal appeal is, accordingly, disposed of.
nsv To
1.The Additional Sessions Judge cum FTC, Thanjavur
2.The Inspector of Police Taluk Police Station Kumbakonam Thanjavur District Crime No.11/2009
3.The Section Officer Criminal Section
4.The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai