Madras High Court
Pitchai Muthu vs State Represented By on 7 March, 2007
Bench: M.Chockalingam, G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07/03/2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE G.RAJASURIA CRL.A.(MD) No.293 of 2005 Pitchai Muthu .. Appellant vs State represented by The Inspector of Police Jeeyapuram Police Station Trichirappalli District Crime No.77 of 2001 .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Tiruchirappalli, in S.C.No.376 of 2002 dated 27.2.2003. !For Appellant : Mr.M.Ramasubramanian ^For Respondent : Mr.S.P.Samuel Raj, Additional Public Prosecutor :JUDGMENT
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.) The appellant, who stood charged as A-1 in S.C.No.376 of 2002 on the file of the Principal Sessions Judge, Tiruchirappalli, under Sec.302 of I.P.C. along with the other ranked as A-2, has challenged the judgment of that Court on being found guilty as per the charge of murder and awarded life imprisonment along with fine and default sentence. On trial, A-2 was acquitted of the charge.
2.Briefly, the facts of the prosecution case can be stated thus:
(a) A-1 and A-2 are brothers. P.Ws.3 and 5 are the brothers of the deceased Sakthivel. There prevailed enmity due to some disputes between the deceased and the accused. On the date of occurrence namely 23.3.2001, P.W.1 and the deceased were employed by one Vijayaraj in construction work. P.W.4 was residing in the opposite house. P.W.3 came to meet his brother. At about 10.00 A.M., A-1 came with a small plastic mug, M.O.1, followed by A-2. On the instigation of A-2, A-1 poured acid on the person of the deceased Sakthivel.
The occurrence was witnessed by P.Ws.1, 3 and 4. Despite chase, they could not catch the accused. The injured Sakthivel was taken to the Government Hospital, where P.W.2 was the Doctor on duty. He was admitted, and the injuries found on him, were noted in Ex.P1, the copy of the accident register. An information was forwarded by the Government Hospital to the respondent Police Station. P.W.10, the Head Constable, proceeded to the Government Hospital and recorded the statement of the injured Sakthivel. On the strength of the statement, marked as Ex.P13, a case came to be registered by the respondent Police Station in Crime No.72/2001 under Sec.307 of I.P.C. The printed First Information Report, Ex.P14, was despatched to the Judicial Magistrate concerned.
(b) P.W.12, the Inspector of Police, on receipt of the copy of the F.I.R., took up investigation, proceeded to the spot, made an inspection and prepared Ex.P3, the observation mahazar, and Ex.P17, the rough sketch. Then, he recovered the material objects available under a cover of mahazar. On 25.3.2001 at about 12.00 Noon, the Investigating Officer arrested A-1, who came forward to give a confessional statement. The admissible part of the same is marked as Ex.P5, following which A-1 produced M.O.6, a bottle, which was recovered under a cover of mahazar, Ex.P6. An intimation was forwarded from the hospital on 13.4.2001 that Sakthivel died at 8.50 P.M., pursuant to which the case came to be altered to Sec.302 of I.P.C. The express report, Ex.P15, was sent to Court. Then, the Investigating Officer proceeded to the hospital, conducted inquest on the dead body of Sakthivel in the presence of witnesses and panchayatdars and prepared Ex.P16, the inquest report. Thereafter, a requisition, Ex.P9, was given by the Investigator to the hospital for the purpose of autopsy.
(c) P.W.9, the Medical Officer, on receipt of the said requisition, conducted inquest on the dead body of Sakthivel and issued a postmortem certificate, Ex.P10, with his opinion that the deceased died on account of burn wound and its complications.
(d) The Investigating Officer took up further investigation. He gave a requisition, Ex.P19, for placing all the material objects before the Forensic Sciences Department. After analysis, Ex.P12, the Serologist's report, and Ex.P21, the Chemical Analyst's report, were received by the Court. Following the same, A-1 was also sent for medical treatment. Ex.P22 is the copy of the accident register in respect of A-1. It was also placed before the Court. 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 establish the charges, the prosecution marched 12 witnesses and also relied on 22 exhibits and 6 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. Apart from that, one Mariappan was examined as D.W.1, and the defence relied on 3 documents marked as Exs.D1 to D3. The remand report of the first accused was marked as Ex.C1. On completion of the evidence on both sides, the trial Court heard the arguments advanced, found the first accused, the appellant herein, guilty as per the charge of murder and awarded life imprisonment, but acquitted A-2 of the charge. Hence, this appeal at the instance of the appellant.
4.Advancing his arguments on behalf of the appellant, the learned Counsel Mr.M.Ramasubramanian, would submit that in the instant case, the occurrence has taken place, according to the prosecution, on 23.3.2001 at about 10.00 A.M., when both A-1 and A-2 came there, and on the instigation of A-2, A-1 poured acid on the deceased; that the prosecution examined four eyewitnesses; that the lower Court was not prepared to accept the evidence put forth by the prosecution through the so-called eyewitnesses P.Ws.1 to 4, in respect of the case of A-2; that A-2 has been acquitted; that under the circumstances, while the trial Court was unable to believe the evidence of P.Ws.1 to 4 in respect of A-2, it should have rejected the evidence outright and should have given the same benefit to A- 1 also, but not done so; that the prosecution has also not proved that the act of A-1 was the direct consequence of death, and thus, the medical opinion canvassed through the postmortem Doctor and the postmortem certificate, was not in favour of the prosecution.
5.The learned Counsel would further add that in the instant case, the alleged confession and recovery of M.O.6 are all nothing but planted to suit the prosecution case, and hence, the lower Court should have rejected the case of the prosecution outright, but failed to do so.
6.The learned Counsel would further contend that even assuming that the prosecution has proved the case to the extent that it was A-1 who poured acid on the body of the deceased, the prosecution has not proved that it was an act intentionally done, or one pre-planned; that apart from that, the act of the accused would not attract the penal provisions of murder; that even the Doctor at the time of the cross-examination, has clearly opined that the deceased would have died out of septicemia; that added circumstance was that he was taken to the hospital, and he was admitted in the hospital on 23.3.2001; but, he died only after 19 days that was on 13.4.2001; that all would go to show that the complication that followed in the intestine, was the reason for the death; that it was not on account of the act of A-1, and under the circumstances, it has got to be considered by this Court.
7.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the rival submissions made.
8.The case of the prosecution in gist is that due to the previous enmity, A-1, the appellant before this Court, poured acid on the body of the deceased at about 10.00 A.M. on 23.3.2001; that he was taken to the hospital immediately; and that he was admitted in the hospital by P.W.2, the Doctor, at about 11.45 A.M. A perusal of Ex.P1, the accident register copy, would clearly reveal the time and place of occurrence and also the pouring of acid on him. The evidence would go to show that he was under treatment. Despite treatment, he died on 13.4.2001, and thus, there is no dispute that as a direct consequence of the pouring of acid, he died. In such circumstances it can be well stated that the death has occurred in this manner. The prosecution has proved to that effect, and further, the medical opinion canvassed, was also in favour of the prosecution. Added circumstance is the recovery of M.O.6 pursuant to the confessional statement made, in respect of which a witness has been examined whose evidence remained intact despite full cross-examination. It is also pointing to the nexus of A-1 with the crime. In such circumstances, the contentions put forth by the learned Counsel for the appellant attacking that part of the case, cannot be countenanced.
9.As far as the act of the accused is concerned, the Court has to necessarily agree with the learned Counsel for the appellant. In the instant case, the deceased person after the acid being poured on him by A-1, was taken to the hospital. He was admitted by the Doctor at about 11.45 A.M. on 23.3.2001, and he died only on 13.4.2001. The Doctor at the time of cross- examination, has also given his opinion that he would have died out of septicemia and the complication that followed. Thus, it would be quite evident that it is not an intentional act nor was it pre-meditated; but, he died out of septicemia and also the complications that followed. Even from the statement made by A-1 at the time of giving confession, it could be seen that there was a quarrel between them, and due to provocation he has acted so. When the prosecution has come forward to prove that due to the act of A-1, the death was the direct consequence, this Court is of the considered opinion that benefit could be given to him due to the provocation which preceded the occurrence. Under the circumstances, though not a case of murder, it is culpable homicide not amounting to murder, and the act of A-1 would attract the provisions of Sec.304 (Part I) of I.P.C. This Court is of the view that 10 years Rigorous Imprisonment would meet the ends of justice. Accordingly, the conviction and sentence imposed on A-1 by the trial Court, are modified, and instead, he is convicted under Sec.304 (Part I) of I.P.C., for which he is directed to suffer 10 years Rigorous Imprisonment. The fine amount and default sentence awarded by the trial Court, are sustained. The sentence already undergone by him, shall be given set off.
10.With the above modification in conviction and sentence, this criminal appeal is dismissed.
To:
1.The Principal Sessions Judge Tiruchirappalli
2.The Inspector of Police Jeeyapuram Police Station Trichirappalli District Crime No.77/2001
3.The Public Prosecutor Madurai Bench of Madras High Court