Madras High Court
Edison Prabhu vs State Rep. By on 30 July, 2010
Author: M.Chockalingam
Bench: M.Chockalingam, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/07/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY Criminal Appeal (MD)No.159 of 2010 Edison Prabhu .. Appellant Vs. State rep. by Inspector of Police, Rameshwaram Town Police Station, Ramanathapuram. (in Crime No.128 of 2009) .. Respondent Criminal Appeal filed under Section 374 of Cr.P.C against the judgment dated 24.03.2010 made in S.C. No.218 of 2009 by the learned Principal Sessions Judge, Ramanathapuram. !For Appellant ... Mr.Gopalakrishna Lakshmana Raju, Senior Counsel for Mr.R.Venkateswaran ^For Respondent... Mr.M.Daniel Manoharan, Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Principal Sessions Judge, Ramanathapuram made in S.C. No.218 of 2009 on 24.03.2010, whereby the accused / appellant stood charged, tried and found guilty under Section 302 IPC and awarded life imprisonment with a fine of Rs.1,000/- and default sentence.
2. The short facts that are necessary for the disposal of this appeal can be stated as follows:-
a) The accused-Edison Prabhu, the deceased-Sahaya Joseph Ponsaka and P.W.8-Edwinraj are brothers and P.W.2-Selinmary is their mother. P.W.1-Vanitha is the wife of the deceased and a resident of Keelakadu, Rameswaram. P.W.5-
Jamesmary is the sister of P.W.2. P.W.6-Soosaimuthu is the husband of P.W.5. P.W.4-Breston is the son of P.Ws.5 and 6. P.W.1 and the deceased were living in one house, while P.W.2 and the accused were living in the opposite house. P.Ws.5 and 6 were living nearby. The deceased was demanding partition of the family properties from P.W.2. Thereafter, P.W.13-Document Writer was requested by P.W.2 to write the document of partition. P.W.13 asked for certain documents which were not given and hence the document of partition could not be written. P.W.8, who is another brother of the accused, was also demanding partition of the family properties. On an earlier occasion, when such a demand was made by P.W.8, the accused took a spade to attack him and thereafter, the family of P.W.8 shifted their residence from Keelakadu to Thangachimadam.
b) While the matter stood thus, on the date of occurrence, that was on 06.04.2009 at about 4.30 p.m., P.W.1 was sitting in front of her house. P.Ws.5 and 6 were sitting and chatting outside the house. At that time, the deceased came and made an attempt for partition of the properties on P.Ws.5 and 6. On hearing this, the accused shouted. Immediately the deceased got into the house, took a scissor and attempted to stab the accused, which caused some simple injuries below the left eye of the accused. Then the accused continued to shout again. Therefore, the deceased got into the house, took a knife and attempted to stab the accused, but at that time, P.W.1 snatched the knife from the deceased and threw it. On seeing this, the accused / appellant got into the house, took an aruval and attacked the deceased on the left side of his neck, due to which the deceased died on the spot itself. This was witnessed by P.Ws.1 to 4. Then, immediately the accused ran away from the place.
c) P.W.16-Sub-Inspector of Police, on receipt of an intimation through phone, proceeded to the spot, where he recorded the complaint from P.W.1 under Ex.P1. On the strength of Ex.P1, a case came to be registered in Crime No.128 of 2009 under Section 302 of the Code. Ex.P15-Express F.I.R. was despatched to the Court and the copies were also sent to the higher-ups.
d) On receipt of copy of the FIR and the complaint, P.W.17, the Inspector of Police, took up the investigation, proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared Ex.P16-Observation Mahazar and Ex.P17-Rough Sketch. Then he recovered M.Os.3 and 4-Knife and Scissor respectively, from the place of occurrence under a cover of Ex.P18- Seizure Mahazar. He also recovered M.Os.5 and 6-blood-stained earth and sample earth respectively, under a cover of Ex.P19-Seizure Mahazar. Thereafter, he sent the dead body for the purpose of conducting autopsy, to the Government Hospital, Rameswaram. On the next day, that was on 07.04.2009 at 7.00 a.m., he went to the hospital and conducted inquest over the dead body of the deceased in the presence of witnesses and panchayatars and prepared Ex.P20-Inquest Report.
e) P.W.9, the Doctor attached to the Government Hospital, Rameswaram conducted autopsy on the dead body of the deceased and she gave her opinion under Ex.P5-Post Mortem Certificate, that the deceased would appear to have died out of shock and haemorrhage due to cut injury to neck about 12 to 24 hours prior to autopsy.
f) On the very day, i.e. 07.04.2009, P.W.17 arrested the accused. When enquired, he came forward to give a confessional statement and the same was recorded in the presence of witnesses. The admissible portion of the confessional statement of the accused is marked as Ex.P13. On the basis of the confessional statement, he produced M.O.1-Aruval which was recovered under a cover of Ex.P14-Seizure Mahazar. Then he was sent to the Government Hospital, Rameswaram. P.W.9, who conducted post mortem on the dead body of the deceased, medically examined the accused at 6.40 p.m. on that day, and issued Ex.P6- Accident Register copy, wherein the injuries sustained by him are mentioned. Thereafter, the accused was sent for judicial remand.
g) All the material objects were subjected to chemical analysis by the Forensic Department which brought forth two reports, viz. Ex.P8-Chemical Analyst's Report and Ex.P9-Serologist's Report.
h) After completion of the investigation, P.W.17 went on leave. Therefore the successor of P.W.17, viz. P.W.18, took up the file, completed the enquiry and filed final report against the accused under Section 302 IPC, before the concerned court, which in turn committed the case to the court of sessions and necessary charges were framed.
i) In order to substantiate the charges, at the time of trial, the prosecution examined 18 witnesses and relied on 21 exhibits and 6 material objects. On completion of the evidence on the side of the prosecution, the accused/appellant was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. No defence witness was examined. After hearing the arguments of the counsel and looking into the available materials, the Trial Court, took the view that the prosecution has proved the case beyond reasonable doubt in respect of the charge levelled against the accused and found him guilty and awarded the punishment as referred to above. Under these circumstances, this criminal appeal has arisen at the instance of the accused/appellant.
3. Advancing the arguments on behalf of the accused / appellant, the learned Senior Counsel would submit that in the instant case, the prosecution came forward with a specific case that pursuant to a quarrel for division of the family property, the accused / appellant attacked the deceased with M.O.1-Aruval at 4.30 p.m. on 06.04.2009 in front of the residence. In order to substantiate the same, the prosecution examined P.Ws.1 to 4 as eye-witnesses, out of whom, P.Ws.2, 3 and 4 have turned hostile. Hence, the prosecution is left only with the evidence of P.W.1. The evidence of P.W.1 was not only self-inconsistent, but also on applying the careful scrutiny test, it should have been rejected by the Trial Judge outright, since it is against all the circumstances put forth by the prosecution. Even the medical opinion canvassed did not corroborate the ocular testimony of P.W.1. The claim of the investigator that the accused was arrested on 07.04.2009 at about 12.00 noon and that he came forward to give a confessional statement and the admissible portion of the same has been marked as Ex.P13, were all created documents in order to suit the prosecution case and hence the evidence produced in that regard, were shaky. Hence, the Trial Judge should have rejected that part of the evidence. Therefore according to the counsel, when the evidence is filled with all reasonable doubts, the accused / appellant is entitled for acquittal in the hands of this Court, but the Trial Judge has taken an erroneous view in convicting the accused / appellant under Section 302 IPC and awarding the punishment as referred to above.
4. Added further the learned Senior Counsel for the accused / appellant that in the instant case, even assuming that the prosecution has proved the factual matrix that it was the accused who attacked the deceased with aruval and caused his death, the act of the accused would not fall under the penal provisions of murder.
5. Learned Senior Counsel for the accused / appellant would add that even as per the evidence of P.W.1, there was a dispute with regard to division of property for a long time and on the date of occurrence, i.e. 06.04.2009, it was only the deceased who first made an attempt to attack the accused with a scissor as a result of which he sustained certain simple injuries. He further submitted that P.W.9-Doctor has also treated the accused on 07.04.2009 and issued Ex.P6- Accident Register copy which would clearly indicate that it was a part of the same transaction and the injuries were caused only when the deceased attacked the accused below his left eye, and not satisfied with the same, the deceased entered into the house and took a knife and made a second attempt to attack the accused, and at that time, P.W.1 has snatched the knife and threw it on the ground. Only on seeing this, the accused got provoked and immediately he took an aruval and cut the deceased. Therefore, according to the counsel, in the instant case, there was a quarrel and apart from that, when the accused was attacked by the deceased for the first time, he sustained injuries and when a further attempt was made to attack him, being provoked, the accused had committed the offence, which is neither premeditated nor intentional and hence it will not attract the penal provisions of murder. Under the circumstances, according to the learned Senior Counsel, the legal position has to be considered by the Court.
6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and also scrutinised the materials available.
7. It is not in controversy that the husband of P.W.1 and the son of P.W.2 was done to death in an incident that has taken place at about 4.30 p.m. on 06.04.2009 in front of the residence. Following the inquest conducted by P.W.17- Inspector of Police, P.W.9, the Doctor attached to the Government Hospital, Rameswaram conducted autopsy on the dead body of the deceased and she gave her opinion as a witness before this Court and also through the contents of Ex.P5- Post Mortem Certificate that the deceased died out of shock and haemorrhage due to cut injury to neck about 12 to 24 hours prior to autopsy. The fact that the deceased died due to homicidal violence was never disputed by the accused / appellant before the Trial Court and hence the Trial Court had no impediment in recording so.
8. In order to substantiate that it was the accused / appellant who attacked the deceased with aruval and caused his instantaneous death, the prosecution marched P.Ws.1 to 4 as eye-witnesses, out of whom, P.Ws.2, 3 and 4 have turned hostile, and therefore, their evidence were not useful to the prosecution. Thus, the prosecution is left only with the evidence of P.W.1. It is pertinent to point out that Indian Criminal Jurisprudence does not require quantity of evidence, but quality of evidence. Evidence of P.W.1 is natural and convincing since she has narrated the entire episode itself, and thus, it inspires the confidence of the Court. According to her, the accused / appellant cut her husband on the left side of the neck, which clearly corresponds to the injuries as found in the Post Mortem Certificate. Even the ocular testimony put forth by P.W.1 stood fully corroborated by the medical opinion canvassed. The added circumstance was the recovery of M.O.1-Aruval pursuant to the confessional statement made by the accused voluntarily and recorded by P.W.17-Inspector of Police. Thus, the evidence adduced on the side of the prosecution points out the nexus of the crime with the accused and therefore, all would clearly indicate that the prosecution has brought home sufficient evidence pointing to the guilt of the accused that it was he who cut the deceased with aruval and caused his death instantaneously. Therefore, the contention of the learned counsel for the accused / appellant in that regard has got to be rejected and accordingly they are rejected.
9. As regards the second line of argument put forth by the learned counsel for the accused / appellant that the act of the accused would not attract the penal provisions of murder, this Court finds sufficient force in his submission. Admittedly, in the instant case, it is seen that there was a long pending dispute with regard to division of a family property and on the date of occurrence, i.e. 06.04.2009, when P.W.1 was sitting in front of her house and P.Ws.5 and 6 were sitting and chatting outside the house, the deceased made a demand for partition of the properties on P.Ws.5 and 6. On hearing this, the accused shouted. Immediately it was the deceased who got into the house, took a scissor and attacked the accused due to which he sustained injuries, and the injuries sustained by the accused are actually shown in Ex.P6-Accident Register copy. A reading of the F.I.R. would clearly indicate that those injuries were caused only by the deceased. Even after that, the deceased went to the house once again, took a knife and attempted to attack the accused. P.W.1 has also categorically stated that she snatched the knife and threw it and thereafter, on seeing this, the accused / appellant got provoked, went to the house, took an aruval and attacked the deceased with aruval and caused his death. Thus, it would be quite clear that there was a wordy altercation, pursuant to which it was the deceased who attacked the accused with a scissor and caused injuries and again went to the house and took a knife, and under the circumstance, the accused got provoked and thereafter he entered into the house, took an aruval, attacked the deceased and caused his death. All this would clearly indicate that the act of the accused was neither premeditated nor intentional and it was only due to a sudden provocation. Under the circumstances, it can only be stated that the accused attacked the deceased due to a sudden provocation, but he should have got the knowledge that his attack would cause the death of the deceased. Therefore, this Court is of the considered opinion that the act of the accused did not make out a case for murder but a case for culpable homicide not amounting to murder and it comes under Section 304 (Part II) of the Code, and therefore, convicting the accused / appellant under Section 304 (Part II) IPC and awarding five years R.I. would meet the ends of justice.
10. Accordingly, the conviction and sentence of life imprisonment imposed by the Trial Court on the accused under Section 302 IPC are set aside and instead, he is convicted under Section 304 (Part II) IPC and he is directed to suffer five years Rigorous Imprisonment. The imprisonment already undergone by the accused / appellant shall be given set off. The fine amount imposed by the Trial Court will hold good.
11. In the result, the Criminal Appeal is accordingly, disposed of.
KM To
1.The Principal Sessions Judge, Ramanathapuram.
2.The Inspector of Police, Rameswaram Town Police Station, Ramanathapuram.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.