Madras High Court
M.Ganesan vs State Through Inspector Of Police on 5 November, 2008
Author: R.Subbiah
Bench: R.Regupathi, R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05/11/2008 CORAM THE HONOURABLE MR.JUSTICE R.REGUPATHI AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Crl.A(MD)No.767 of 2001 M.Ganesan ... Appellant Vs. State through Inspector of Police, Tiruvengadam Police Station, Tiruvengadam, Tirunelveli District. ... Respondent Prayer Appeal filed under Section 374 of Cr.P.C., against the judgment in S.C.No.346 of 1998, dated 25.04.2001 on the file of the Principal Sessions Court, Tirunelveli. !For Appellant ... Mr.S.Shanmugavelayutham S.C. for Mr.M.Suri. ^Respondent ... Mr.D.Issac Mohanlal, Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by R.SUBBIAH, J.) The appellant is the accused in S.C.No.346/1998 on the file of the Principal Sessions Court, Tirunelveli. He was convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo Rigorous Imprisonment for three months with a further direction that the sentence already undergone by him is directed to be set off against the sentence imposed on him under Section 428 Cr.P.C, on a charge for having murdered his mother-in-law Mariammal in the early morning of 31.03.1998.
2.The sum and substance of the case of the prosecution are as follows:
The Appellant/accused is the son-in-law of the deceased. P.W.1 is the wife of the accused and daughter of the deceased. P.W.1 was married to the accused about 16 years before the date of occurrence that happened on 31.03.1998. P.W.2 is the minor son of the deceased. P.Ws.3, and 4 are the daughters and P.W.5 is the son of the deceased respectively and all of them were residing in chinnakalanpatti village. P.Ws.6 and 7 were the residents of the Chinnakalanpatti. After the marriage, there were frequent misunderstandings and quarrel between P.W.1 and the accused. So within a short period of her marriage she ( P.W.1)left her matrimonial home and was residing with her mother. A week before the date of occurrence, the deceased left the village Chinnakalanpatti to Kancheepuram. During the absence of the deceased in the village, there was a quarrel between P.W.1 and the accused since the accused had questioned P.W.1 suspecting her fidelity, as she was found traveling in a cycle with some other person. Subsequently, when the deceased returned to her native Village, P.W.1 complained about the quarrel that took place between her and the accused. On 31.03.1998, when P.W.1 was cleaning the front yard of the house, the accused and his mother scolded the deceased complaining that the deceased had not brought up her daughter (P.W.1) with virtuous manner which resulted in a wordy quarrel. On hearing the complaint from P.W.1, the deceased shouted at the accused that if he had spoken anything ill of her daughter she would not allow the matter to set at rest and she would beat him with broom-stick. The accused who is the son-in-law of the deceased on hearing such words from his mother-in-law, got suddenly provoked and shouted at the deceased that it was the deceased who was responsible for all the happenings and only if she died P.W.1 would behave properly and so saying the accused assaulted the deceased with an Aruval . When the deceased attempted to prevent the assault, a cut injury was caused to her left wrist, as a result of which the distal part of the left forearm was severed. The deceased caused another cut injury in the right forearm and other two cut injuries on her head. On hearing the alarm of the deceased, P.Ws.1,3,4,5 and 6 who were all standing there raised an alarm. P.W.7 who came there also raised an alarm. Immediately, the accused left the place with the aruval.
Thereafter, P.W.1, took the deceased with the help of P.W.3 (sister of P.W.1) in an auto and went to the Thiruvengadam Police Station at 08.30 a.m. P.W.1 lodged the complaint since the injured was unable to speak. P.W.12, the Sub Inspector of Police recorded the statement from P.W.1 and obtained her signature. The said statement is marked as Ex.P.8. Thereafter, P.W.12 registered a case in Crime No.146 of 1998 under Section 307 IPC and prepared the FIR which is marked as Ex.P.9. Thereafter, P.W.12 sent the injured to Sankarankoil Government Hospital along with a memo. Thereafter, she was referred to Tirunelveli Medical College Hospital where she succumbed to the injuries at 08.30 p.m. on the same day.
3.Then, P.W.12 forwarded Ex.P.9 FIR through P.W.13, Head Constable to the learned Judicial Magistrate, Sankarankoil by 11.00 a.m, on 31.03.1998. A copy of the FIR was also forwarded to the Inspector of Police, P.W.17, for investigation and the same was received by P.W.17. Thereafter, P.W.17, took up the investigation and proceeded to the spot by 12.00 noon and inspected the place of occurrence and prepared an Observation mahazar Ex.P.2 and a Rough Sketch of the scene of the occurrence marked as Ex.P.22 and recovered the bloodstained earth and sample earth under cover of a mahazar in the presence of P.W.9, the Village Administrative Officer and obtained the signature of the witnesses. Thereafter, on 31.03.1998, P.W.17, recorded the statement of P.Ws.1-9 and also other witnesses. Subsequently, P.W.14 Head Constable, attached to the Thiruvengadam Police Station had received the death intimation at 10.00 p.m. which is marked as Ex.P.10. from the Outpost Police Station, Tirunelveli Medical College Hospital, Tirunelveli.
4.On 01.04.1998 at about 06.00 a.m., the death intimation was sent to P.W.12 who, on receipt of the death intimation altered the case into one under Section 302 IPC and sent the express report, Ex.P.11, to the learned Judicial Magistrate, Sankarankoil through P.W.15, the Head Constable attached to the Thiruvengadam Police Station. The said report was handed over to the learned Judicial Magistrate, Sankarankoil at 08.00 a.m. P.W.17 who received the copy of the express report went to the Tirunelveli Medical College Hospital, Tirunelveli and conducted inquest over the dead body of the deceased and prepared the inquest report marked as EX.P.23. Thereafter, the body of the deceased was sent along with a requisition to the Tirunelveli Medical College Hospital, Tirunelveli for conducting autopsy.
5.P.W.11, who on receipt of the requisition given by the Investigating Officer, conducted autopsy on 01.04.1998 between 2.15 p.m. and 3.30 p.m., and issued the Post-mortem Certificate wherein the following injuries have been noted.
"1.9 cm long sutured wound seen on the back of right forearm extending from middle one third to lower one third. On dissection: it was muscle deep. 2.5cm long sutured wound seen on the back of outer aspect of upper part of left arm; on dissection: it was muscle deep.
3.Cut injury 16 cm in circumference seen at the level of lower 1/3 of radius and ulna. With the underlying radius and ulna found cut at site, the major blood vessels, nerves and tendons also found cut at site. The distal part of wrist and left hand found missing.
4.6cm long sutured wound (Transversely oblique cut injury) seen from outer aspect of left eye to the upper part of left external ear.(Temporal area) on dissection: the underlying orbital frontal and temporal bone cut at site. 5.12 cm long sutured cut injury (horizontal) seen on the back of parietal region. It is 10 cms away from the upper border of left external ear. On dissection: the underlying parietal bone found cut at site.
6.Y-shaped 19 cm long sutured cut injury seen on the mid parietal region. It is 12 cm away from the upper border of left external ear. On dissection: the underlying parietal bone found cut at site".
Further, he opined that the deceased appeared to have died due to shock and haemorrhage and due to the multiple heavy injuries.
6.Thereafter, P.W.17, handed over the case file to P.W.18, the regular Inspector of Police, for further investigation.
7.P.W.18, Investigating Officer, who had received the case file, on coming to know that the accused had surrendered before the Judicial Magistrate Kovilpatti on 31.03.1998. P.W.18, took the accused into police custody on 06.04.1998 and examined him. The appellant /accused voluntarily gave a confession the admissible portion of which is marked as Ex.P.24. in pursuance of which the Aruval, Lungi and Towel, M.Os.3,4 and 5, were seized from the house of the accused under Ex.P.4. on 07.04.1998. The accused was produced before the learned Judicial Magistrate and remanded to Judicial custody. Thereafter, a requisition was given to send the M.Os. to chemical analyst report and the opinion was subsequently received under Ex.P.19.
8.P.W.18, on conclusion of the investigation laid the final report under Section 302 IPC before the learned Judicial Magistrate, Sankarankoil.
9.The learned trial Judge, after receiving the oral and documentary evidence collected during the course of the trial, when questioned the accused under Section 313 Cr.P.C., the accused denied the complicity of the commission of the offence and pleaded not guilty.
10.The Trial Judge,after analyzing both the oral and documentary evidence and hearing the submissions made both the parties found the accused guilty of the offence punishable U/s.302 I.P.C convicted and sentenced him as stated supra. Aggrieved by the conviction and sentence, the appellant preferred the present appeal before this Court.
11.Mr.Shanmugavelayutham, learned Senior Counsel submitted that P.Ws.1, 2 and 6 did not support the case of the prosecution and have turned hostile to the prosecution. The appellant stands convicted only based on the evidence of P.Ws.3,4 and 5 who are the daughters and son of the deceased and who have claimed to have witnessed the entire occurrence. According to the learned Counsel,the witnesses PW.3,4 and 5 could not have seen the occurance since their evidence suffers from many infirmities and as such it is unworthy of acceptance .The learned Senior Counsel contended according to P.W.10, Doctor who issued Ex.P.5, Wound Certificate, there were only four injuries on the body of the deceased.
12.P.Ws.3,4 and 5 in their evidence have stated that the accused cut indiscriminately on the head of the deceased which is totally falsified by the entries in Ex.P.5 and Ex.P.7. This version would go to show P.Ws.3,4 and 5 would not have seen the occurrence. Under such circumstances, it could be inferred that P.Ws.3,4 and 5 who are interested witnesses are pressed into service.
13.The learned defence counsel, in addition to the above submissions, pleaded an alternative argument that the offence, in the back ground of the motive, leading to sudden provocation would become punishable U/S. 304(1) of I.P.C. but not U/s.302,I.P.C. The learned Additional Public Prosecutor submits that both in the wound certificate and post mortem certificate, there were more than four injuries found on the body of the deceased which have been caused by the accused with the aruval and all the injuries are accounted. In fact, P.W.3 had clearly spoken about the same in her evidence. Even in the evidence of P.Ws.3, 4 and 5, there is no contradiction in the description of the injuries and the evidence of P.Ws.3,4 and 5 are cogent and they corroborate with each other. Under such circumstances, there is no infirmity in the conviction and sentence passed by the trial Court under Section 302 IPC.
14.We have perused the materials on record and the submissions advanced by both sides.
15.P.Ws.3 to 5, the daughter and son of the deceased Mariammal have spoken to have witnessed the occurrence. Their evidence cannot be discarded on the ground that their evidence is interested testimony , simply because of their close relationship. It is not disputed that they were residing in the same locality. In fact there is absolutely no evidence and circumstance leading to any inference that they are pressed in to service to speak against the accused. It is to be noted that the occurrence took place in the morning at 6.30.A.M. on 31.03.1998. It is more likely these witnesses would have been present in their respective houses which are adjacent to that of the scene of occurrence. All the eye witnesses (P.W.3 to 5) have categorically deposed that the accused along with his mother came to the scene of occurrence and stated that P.W.1 was found by the accused, traveling in a cycle, along with another person to which the deceased made a threatening remark, saying that she would beat the accused with a broom stick, if the accused repeated his insinuation, touching P.W.1's character. According to the evidence of these witnesses, it was at this moment the accused inflicted the injuries to which she succumbed. Though P.Ws.3 and 4 stated that the accused went to his house and came back with Aruval and attacked. But contrary to the evidence of P.Ws.3 and 4, the son of the deceased (i.e.,) P.W.5 has deposed that the accused attacked the deceased with the Aruval which he was already having even at the time when the wordy quarrel started, resulting in the occurrence.
16.On a deep examination of the oral testimony of PW 3 to 5,we have no hesitation in holding that it was the appellant/accused who caused the injuries, resulting in the death of the deceased Mariammal. The attending circumstances and the evidence brought on record unmistakably show that the (accused) appellant should not have determined to murder the deceased when he told his grievance to his mother-in-law that her daughter was not properly brought up in moral standards by the deceased and the deceased alone was responsible for the questionable behaviour of P.W.1. The deceased on suddenly becoming annoyed at the complaint of the grievance, expressed by the accused about her daughter got more and more irritated at the comment of the Accused saying that the deceased was responsible for her daughter's behavioral attitude. The deceased at this point of time, uttered the provoking words, that she would beat the accused with a broom stick. In fact even according to the prosecution the motive for this sudden occurrence was on account of these scandalous and provocative utterances, made by the deceased. The eye witnesses P.W'S.3 to 5 have consistently speak to the fact of the provocative utterances, made by their mother supporting the prosecution.
17.In addition to the above facts and circumstances appearing in this case, there is an important piece of evidence spoken to by the Investigating Inspector (P.W.17) himself. According to P.W.17, he took custody of the accused on 06.04.1998 and examined him and recorded his statement a part of which is incriminatory in nature, particularly with regard to the motive part of the case. In the cross examination P.W.17 has clearly admitted that the accused in his statement when examined confessed that he (Accused) while was proceeding with an aruval to cut the bunch of green leaves to his sheep as fodder for them, the deceased on seeing he accused came to-wards him snatching the broom-stick from the hands of her daughter (P.W.1) and saying as to how the accused could dare to speak ill of her daughter and she would not leave him from being beaten with the broom stick. So saying the deceased approached the accused by raising the broom stick. There is no evidence on the prosecution side totally denying the above portion of the confessional statement of the accused. In fact P.W.'s 3 to 5 support this part of the statement to some extant. Therefore it may not be wrong to take in to consideration of this statement as spoken to P.W.17. The learned defence counsel relied upon some reported judicial pronouncements that a part of the statement can be considered if it is in favour of the accused.
18.Though as per section 25 of the Evidence Act no statement made to a police officer shall be proved as against a person accused of any offence, the defence counsel cited a decession of this court reported in 1951 M.W.N (Crl) 274 (Mottai Thevan VS State) in support of his submission that in a given situation section 25 of the Evidence Act may not be a bar and the statement can be used in favour of the accused. The view expressed by this court in this cited judgment reads as follows:-
"S.25 of the Indian Evidence Act says that "no confession made to a police officer shall be proved as against a person accused, of any offence". I underline the word against; the section does not therefore prohibit the use of it in favour of the accused. In the majority of cases, the confessions are sought to be used only against the accused. The cases in which such confessions would or can be used in favour of the accused will be very few and they will be the exceptions to the general rule. The section therefore ought not to be repealed or modified for the sake of the few, or the exception. In the present case, though we have used the confession in favour of the accused, it cannot be said that that is the only view to be taken of the confession. It is possible to take a different view of the confession and that too in a telling manner against the accused. It depends therefore on the use court is going to make of the confession. If it is to be used against the accused, then S.25 is a bar and it cannot be admitted but if it is to be used in favour of the accused, I do not think that S.25 is a bar and the confession can well be admitted".
19.In another decision reported in 1974 CrlLJ 381 (In re Ganesan) the court following the legal principle laid down in the above cited case has observed that the confession statement given by the accused can be used in favour of him.
20.In yet another case reported in MLJ (Criminal) Vol.XXXVII(Semban Vs. State by Inspector of Police, Bhavani Police Station) it has been held that the confession statement can be used in favour of the accused.
21.Recently in a case reported in 2008(2) MLJ 326 (S.S.Rajan VS State) this court has express its view that though a confession made by an accused to a police officer cannot be used during the trial as per section 25 of the Indian Evidence Act, it may not be wrong if it is in favour of the accused. Reference may also be made to the following cases:-
1.Thandavan In re - 1972 L.W. (Crl) 244.
2.Ganesan In re - 1973 L.W. (Crl) 42.
22.Based on the opinion, expressed by this court in the above cited judgments we are fortified to take into consideration of the confessional statement of the accused as deposed by the P.W.17 explaining the circumstances in which the deceased caused provocation holding a broomstick. Now the question that arises for our consideration is whether the offence is one of murder or whether there is any extenuating circumstance bringing the offence under any one of the exceptions, enumerated in the definition of section 300 I.P.C and bringing the offence as one of Culpable homicide not amounting to murder punishable U/s. 304 (1) of I.P.C..
23.We, arrive to the conclusion from the detailed discussion made in the earlier part of the judgment that the accused who was deprived of the power of self control by the grave and sudden provocation caused by the deceased inflicted the injuries which resulted in the death of the deceased Mariammal. Therefore, we hold that the exception 1 to Section 300 IPC is attracted and consequently the appellant cannot be held liable U/s.302 I.P.C but would be liable for the offence of Culpable Homicide not amounting to murder punishable U/s.304 Part I , I.P.C.
24.In the result, we set aside the conviction U/S.302 I.P.C and the sentence of imprisonment for life awarded by the learned sessions Judge instead we convict the accused U/S.304(1) I.P.C. and sentence him to undergo 5 years Rigorous Imprisonment. The period, if any, already undergone shall be given set off. The fine amount of Rs.1000/- with default clause imposed by the court below is retained.
25.The criminal appeal is partly allowed subject to the above modification.
26.It is reported that the accused is on bail. The Sessions Judge concerned is directed to take steps to secure the presence of the accused and commit him to prison to undergo the remaining period of sentence, if any.
sms To:
The Inspector of Police, Tiruvengadam Police Station, Tiruvengadam, Tirunelveli District