Madras High Court
Ramesh vs State Rep. By on 13 February, 2008
Author: M.Chockalingam
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL APPEAL NO.413 OF 2007 Ramesh .. Appellant Vs. State rep. by Inspector of Police, Mandabam Police Station, Ramanathapuram District. (Crime No.175/06) .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District Sessions Judge, Ramanathapuram made in S.C.No.13 of 2007, dated 24.04.2007. !For Appellant ... Mr.Gopalakrishna Lakshmana Raju, SC for Mr.R.Venkateswaran ^For Respondent ... Mr.C.Daniel Manoharan, APP :JUDGMENT
(The judgment of the court was delivered by M.CHOCKALINGAM, J.) A challenge is made to the judgment of the learned Additional District Sessions Judge, Ramanathapuram made in S.C.No.13 of 2007, whereby the sole accused/appellant stood charged under Sections 341 and 302 IPC, tried and found guilty as per the charges and awarded with life imprisonment and to pay a fine of Rs.1000/- in default to undergo 6 months RI under Section 302 IPC and one month SI and to pay a fine of Rs.500/-, in default to undergo one week SI under Section 341 IPC.
2.The short facts necessary for the disposal of this appeal could be stated as follows:
a)P.W.1 is the son of the deceased Balu. P.W.5 is the mother and P.W.6 is the sister of P.W.1. They were all the residents of Rameswaram. On the date of occurrence, namely on 1.7.2006, P.W.1 came over to Mandabam, where his father was working, to get money from him. At that time, his father informed him that the father of the accused has to give Rs.2000/- to him and when it was asked to the accused, there was wordy altercation between the deceased and the accused and at that time, the father of the accused was not available and one Subramaniam intervened and pacified the situation.
b)At about 6.15 p.m., after finishing the work, the deceased, P.W.1, Subramanian and Balakrishnan took tea in a shop and they returned. At that time, the accused came from the opposite direction and was telling the deceased that you only used filthy language against my mother. So telling, he took the Miranda bottle, broke the same and stabbed on the neck of the deceased. The accused fled away from the place of occurrence.
c)Within a short time, P.W.2, the Doctor of Primary Health Centre, was informed about the incident. He came over there, attended on the deceased and declared him dead. P.Ws.3 and 4 have also seen the occurrence. On coming to know that his father died, P.W.1 proceeded to the respondent police station and gave Ex.P.1, the report to P.W.15, the Inspector of Police, on the strength of which, a case came to be registered in Crime No.175 of 2006 under Section 302 IPC. Ex.P.15, the F.I.R. was despatched to the court.
d)Further, P.W.15 proceeded to the scene of occurrence and prepared Ex.P.2, the observation mahazar and Ex.P.16, the rough sketch. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.17, the inquest report. Then, he recorded the statement of the witnesses. The dead body of the deceased was sent for port- mortem along with the requisition.
e)P.W.10, the Doctor attached to the Government Hospital, Mandabam Camp, on receipt of the requisition, has conducted autopsy on the dead body of the deceased. He has noted the external injuries found on the dead body of the deceased in Ex.P.11, the post-mortem certificate. P.W.10 has also issued Ex.P.12, the final opinion, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained.
f)Pending investigation, the Investigating Officer arrested the accused on 14.7.2006. The accused voluntarily gave confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.13. Pursuant to the same, the accused produced broken soda bottle, which was recovered under a cover of mahazar. The accused was sent for judicial remand. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and the M.O. recovered from the accused were sent for chemical analysis by the Forensic Science Department, which resulted in two reports, namely Ex.P.6, the Chemical Analyst's report and Ex.P.7, the Serologist's report. On completion of the investigation, the Investigating Officer has filed the final report.
3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 17 exhibits and 7 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined, but only one document was marked as Ex.D.1. The trial court, on hearing the submissions made by both sides, took the view that the prosecution has proved the case beyond reasonable doubt and has entered a judgment of conviction and sentence, which is the subject matter of challenge before this court.
4.Advancing arguments on behalf of the appellant, the learned Senior Counsel has made the following submissions:
a)In the instant case, the prosecution had relied on the evidence of P.Ws.1,3 and 4 as eyewitnesses. So far as P.Ws.3 and 4 are concerned, their evidence cannot be believed for the reason that though P.W.1 claimed that both the witnesses are present at the time of occurrence, their names did not find place in the F.I.R. and further, their statements alleged to have been recorded, reached the court after a long time. Thus, it casts a doubt whether P.Ws.3 and 4 were present at the time of occurrence. Now, P.W.1 was the only eyewitness available before the court. He could not have been present at the time of occurrence at all. Admittedly, he was residing at Rameswaram. Only on information, P.Ws.5 and 6 came to the spot at about 6.30 p.m. Further, P.W.1 also could have come to the spot only on information.
b)According to P.W.2, the Doctor, when he went to the spot, the police were very well available. He was enquired by the police. Nowhere in his evidence he has stated that P.W.1 was present. P.W.2 claimed that he knew P.W.1. Had it been true, he would have spoken about the fact, but not spoken so. Hence, it would be quite clear that P.W.1 could not have been present at all. In the instant case, according to the prosecution, on arrest, the accused gave confessional statement voluntarily, pursuant to which, the broken soda bottle was recovered. According to the prosecution, it was a strong piece of evidence.
The lower court has also accepted the same, but erroneously. It was stated in Ex.P.1 that the broken bottle was actually left by the accused and the accused fled away from the place of occurrence. But, it was not recovered by the Investigator. The only story that was put forth by the prosecution was the arrest of the accused, confessional statement and the recovery pursuant to the confessional statement, which was nothing but a thorough imaginary introduction. Hence, it has got to be rejected.
c)According to P.W.1, at the time of occurrence, there was lot of blood sprinkling. If to be so, there should have been some bloodstained earth, but the Investigator has not recovered any bloodstained earth at all. Further, in the instant case, it is highly doubtful whether the investigation proceedings has taken place as put forth by the Investigating Officer. All put together would cast a doubt whether the prosecution placed the case in a true state of affairs. Added further the learned counsel that the occurrence has taken place earlier even before 6.15 p.m. and hence, the earlier information has been suppressed and there is no eyewitness to speak about the occurrence. Therefore, the evidence put forth by the prosecution in respect of the arrest, confessional statement and recovery were rejectionable. Under these circumstances, the prosecution has not proved the case beyond reasonable doubt.
d)In the instant case, admittedly, the deceased went over to the shop of the accused and demanded money, which was actually owed by the father of the accused. At that time, there was wordy altercation. Admittedly, one Subramaniam intervened and pacified the situation. In that wordy altercation, the deceased has spoken about the ill of the mother of the accused. The deceased has stated that if the money was not paid, the accused should have sent his mother with him. According to P.W.1, when the accused attacked the deceased, he was telling "you only used filthy language against my mother" and thus, the provocation was a sustained one and it was lingering in the mind of the accused. Thus, there was neither intention nor premeditation. Hence, the act of the accused would not amount to murder, but it would be one culpable homicide not amounting to murder. Therefore, this legal aspect has got to be considered even if the court has to accept the case of the prosecution as to the factual position.
5.The court heard the learned Additional Public Prosecutor on the above contentions.
6.The court has paid its anxious consideration on the submissions made. It is not in controversy that Balu, the father of P.W.1 was done to death in an incident that took place at the place of occurrence on 1.7.2006. Following inquest made by P.W.15, the Investigating Officer, the dead body was subjected to post-mortem by P.W.10, the Doctor, who has issued Ex.P.11, the post-mortem certificate and Ex.P.12, the final report, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. The fact that the deceased died out of homicidal violence was not the subject matter of controversy before the trial court. Hence, without any impediment, it could be recorded so.
7.In order to substantiate the charges levelled against the appellant/accused, the prosecution examined P.Ws.1,3 and 4 as occurrence witnesses. P.Ws.3 and 4 belonged to Rameswaram, from where they came over to Mandabam Camp for the purpose of playing Cricket and then, they returned. P.W.1 was the son of the deceased and he was also the informant to the police. P.W.1 claimed that P.Ws.3 and 4 have accompanied him. Had it been true that P.Ws.3 and 4 actually witnessed the occurrence along with him, there could not be any impediment for P.W.1 to mention the names of P.Ws.3 and 4 while giving report, but nowhere their names were found. The statements of P.Ws.3 and 4 under Section 161 Cr.P.C. were recorded on the very day. If to be so, there cannot be any impediment to send the statements of those witnesses immediately or within a reasonable point of time to the court, but it has reached the court after a few months. Thus, it is doubtful whether P.Ws.3 and 4 could have been the eyewitnesses to the occurrence. Hence, the court is of the view that the evidence of P.Ws.3 and 4 would be of no avail to the prosecution. Hence, the prosecution had the evidence of P.W.1 only.
8.It is true, P.W.1 was the son of the deceased. The relationship of the witnesses cannot be a reason to discard the testimony, but it must be taken into account only after exercising the test of careful scrutiny. Despite cross- examination, the court is satisfied that P.W.1 was the eyewitness to the occurrence. According to P.W.1, he went to Mandabam, where his father was working, to get money from him. At that time, since the work was over, the deceased came out and they went to take tea at the place of occurrence. In the opposite direction, the accused came and uttered the words as recorded above. The accused broke the Miranda bottle and stabbed the deceased and caused injuries on his neck. Despite cross-examination, the evidence of P.W.1, as eyewitness, stood the test. Further, the evidence of ocular testimony stood fully corroborated by the medical evidence.
9.It is true, as per Ex.P.1, the report, the broken bottle was found in the place of occurrence. The accused left the same and fled away from the place of occurrence. But, the Investigating Officer has not recovered the same. The prosecution came with the story to state that it was recovered on arrest of the accused following the confessional statement. As rightly pointed out by the learned Senior Counsel for the appellant, it has got to be rejected. Even then, the court is of the considered opinion that the evidence of P.W.1 has inspired the confidence of the court and it is also fully corroborated by the medical evidence. Hence, the court is able to see the complicity of the offender. Therefore, the factual position as put forth by the prosecution has got to be accepted.
10.So far as the second line of contention is concerned, the court is able to see sufficient force in the contention put forth by the learned Senior Counsel for the appellant. In the instant case, admittedly, the father of the accused has to pay some money to the deceased. When the deceased went to the shop of the accused and asked the same, the father of the accused was not found. Hence, a demand was made to the accused. The accused informed him that his father was in house and at that time, there was a wordy altercation, in which the deceased told "if money was not paid, your mother must be allowed to come with me". When these words are spoken, it is quite natural for the son to get provoked. At the time of occurrence, telling that you only used filthy language against my mother, the accused broke the bottle and attacked the deceased. Under these circumstances, it would be quite clear that the provocation was a sustained one. It is not the case of the prosecution that the accused was armed with anything, but, the accused suddenly took the soda bottle from the shop and attacked the deceased. Hence, the act of the accused was neither intentional nor premeditation. But, it was due to provocation, which was lingering in the mind of the accused. Hence, the court is of the considered opinion that the act of the accused cannot be termed as murder, but it would be one culpable homicide not amounting to murder and it would attract the penal provisions under Section 304(II) IPC and awarding punishment of 5 years R.I. would meet the ends of justice.
11.Hence, the conviction and sentence imposed under Section 302 IPC are modified to one under Section 304(II) IPC and the appellant is directed to suffer 5 years R.I. The sentence already undergone by the appellant is ordered to be given set off. The fine amount imposed under Section 302 IPC shall be treated as fine amount under Section 304(II) IPC. In other respects, the judgment of the lower court is confirmed.
12.With the above modification in conviction and sentence, this criminal appeal is dismissed.
vvk To
1.The Inspector of Police, Mandabam Police Station, Ramanathapuram District.
2.The Additional District Sessions Judge, Ramanathapuram.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.