IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 12.03.2010 Coram and The Honourable Mr. Justice C.S. KARNAN Crl. A. No.820 of 2009 Krishnamurthy ... Appellant ..Vs.. State by Inspector of Police, F-2, Egmore Police Station, Chennai – 600 008. ... Respondent Cr.No.2130 of 2006 Appeal filed against the judgment dated 31.7.2007 passed by the learned Principal Sessions Judge, Chennai in S.C. No.78 of 2007. For Appellant : Mr. S. Pannerselvam For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 31.7.2007 passed by the learned Principal Sessions Judge, Chennai in S.C. No.78 of 2007, whereby the sole accused stood charged, tried and found guilty for the offence under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo Simple Imprisonment for three months. 2. The short facts necessary for the disposal of this appeal can be stated thus:- (i) The deceased was an agent for selling kidneys. He approached the accused and asked him to part with his kidney for selling it at higher price and on his representation, the accused came to Madras. On 13.11.2006 at early hours at 00.15, the deceased was sleeping at the portico of intensive Maternity Wing Building at Maternity Hospital at Egmore. The accused was sitting sleepless and thinking over about giving his kidney. He thought that if he would remove his kidney, he would die. Suddenly, the accused, with an intention to commit murder of the deceased, took a heavy stone and https://hcservices.ecourts.gov.in/hcservices/ dropped it on the head of the deceased and thereby, caused his death. (ii) This was witnessed by P.W.1, plastic goods vendor and P.W.2 who was working in the cycle shop nearby and they were sitting and chatting with each other. On seeing this, they caught the accused red handed and asked him about the incident. He narrated the reason as to why he caused the death of the deceased. P.W.1 advised him to surrender before the police, instead, the accused ran away. (iii) P.W.1 went to the respondent police and gave a complaint to the Inspector of Police P.W.6, who in turn, on the strength of Ex.P1 complaint, registered a case in Crime No.2130 of 2006 under Section 302 of the Indian Penal Code. Ex.P7 Express First Information Report was despatched to the Court. P.W.6 took up investigation, proceeded to the spot, made an inspection and prepared observation mahazar Ex.P2 and sketch Ex.P8 in the presence of witnesses. Thereupon, he recovered blood stained stone M.O.1, blood stained cement plaster pieces M.O.2 and sample cement plaster piece M.O.3 in the presence of witnesses under the cover of mahazar Ex.P3. (iv) He examined the witnesses and recorded their statements. He conducted inquest on the dead body and prepared inquest report Ex.P9. The dead body was subjected to autopsy. Pursuant to the request made by the Investigating Officer, P.W.5 Doctor R. Parimala issued post-mortem Certificate Ex.P6, where she opined that the deceased would appear to have died of "head injury". In the said Certificate, he found the following features:- " Moderately built. Laceration : Right forehead 1 x 0.5 cm. Sub Arachnoid Haemorrahage, Sub Dural Haemorrhage present. Brain is oedematous. Fracture of left & right middle cranial fossa. Heart chambers filled with fluid Blood. All the internal organs congested (Liver, Lungs, Kidneys, Spleen) Stomach empty. Bladder empty." (v) Pending investigation, P.W.6 Inspector of Police arrested the accused on 13.11.2006 under the Binny Bridge at Ethiraj Road and recorded the confession statement given by him voluntarily in the presence of witnesses and the admissible portion of the same is marked as Ex.P4. Pursuant to the confession statement, the accused produced the blood stained black pant M.O.5 and the same was recovered in the presence of witnesses under the cover of mahazar Ex.P5. All the material objects were sent to Forensic Department for chemical analysis and the chemical analysis report is marked as Ex.P12. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. https://hcservices.ecourts.gov.in/hcservices/ 3. In order to substantiate its case, the prosecution examined 6 witnesses and relied on 12 documents and also relied on M.Os.1 to 9. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. One document was marked on the side of defence. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the accused guilty under Section 302 of the Indian Penal Code and awarded punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, Mr.S.Pannerselvam, learned counsel would submit that in the instant case, the prosecution has failed to prove its case. P.W.1 is the plastic goods vendor and he had no occasion to be present at the place and time of occurrence. Insofar as P.W.2 was concerned, he was working in the nearby shop. Both of them were unable to say under what circumstances, they happened to be standing or sitting in front of the Maternity hospital during night hours. The prosecution has not examined anyone of the witness from the Hospital. It would clearly indicate the fact that the prosecution had no evidence to speak the incident put forth by the prosecution. P.Ws.1 and 2 are planted witnesses. 6. Learned counsel added further that when there was no eye witness to the occurrence, the prosecution has not placed any circumstance pointing out to the guilt of the accused. The ocular testimony of P.Ws.1 and 2 was not corroborated through medical evidence. The recovery of M.O.5 pant by the Investigators is nothing but an introduction in order to strengthen the prosecution case. The alleged confession and recovery is nothing but false. Hence, the prosecution has miserably failed to prove its case. Hence, learned counsel prays for acquittal of the appellant in the hands of the Court. 7. This Court heard the learned Additional Public Prosecutor on the above contentions. 8. This Court paid its anxious considerations on the above contentions. In order to prove the charge levelled against the accused, the prosecution relied on the direct evidence of P.Ws.1 and 2. P.W.1 was the Plastic Goods Vendor and P.W.2 was working in the cycle shop, which is situated nearby the Maternity Hospital. Since they were sleepless, they were sitting in front of the Hospital and chatting with each other. Both the witnesses have spoken in one voice that at that time, the accused was attacking the deceased with M.O.1 stone, they were very much available. https://hcservices.ecourts.gov.in/hcservices/ 9. On witnessing the occurrence, they immediately caught hold of the accused. When they asked the reason for killing, the accused replied that the deceased was an agent for selling kidneys and hoping his words, he came to Madras and further, he thought over the matter, if the kidneys were removed from him, his life would be spoiled. Then, P.W.1 advised him to surrender before the police. He fled away from the place of occurrence. Nothing worth mentioning has been elicited from the witnesses. Their evidence remained unshaken since they spoke the fact in one voice. 10. Added circumstance is the recovery of M.Os.1 to 4 from the place of occurrence. The ocular testimony projected through P.Ws.1 and 2 corroborated through medical evidence. The recovery of pant, which was worn by the accused at the time of occurrence pursuant to the arrest and confession statement given by him, was also proved by the prosecution through mahazar witness. Hence, the contentions put forth by the learned counsel for the appellant do not carry any merit whatsoever. 11. P.Ws.1 and 2 had clearly explained, how they happened to be at the place of occurrence. Insofar as non examination of any Doctor or Nurse or persons employed inside the Maternity Hospital is concerned, it cannot be taken as a ground to cast doubt on the prosecution case for the simple reason that the occurrence had taken place in front of the Hospital and not inside the Hospital. 12. The prosecution has brought home the guilt of the accused through the evidence of P.Ws.1 and 2, which remained unshaken coupled with the fact of recovery of M.Os. In order to bring down from the act of murder, no circumstance is noticed. Hence the act of the accused would fall within the definition of murder. Hence, the judgment of the Trial Court for finding the accused guilty for murder and awarding life imprisonment is not to be disturbed. 13. Apart from all the above, learned Additional Public Prosecution brought to the notice of this Court that when the accused was questioned under Section 313 of the Criminal Procedure Code about the sentence to be imposed on him under Section 302 of the Indian Penal Code, the accused himself has well admitted that it was his act. 14. In such circumstances, the judgment of the Trial court stands confirmed. The criminal appeal fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssa. To 1. The XIV Mwetropolitan Magistrate, Egmore, Chennai. 2. -Do-Thro The Chief Metropolitan Magistrate, Egmore, Chennai - 8 3. The Principal Sessions Judge, Chennai. 4. The Superintendent, Central Prison, Chennai. 5. The District Collector, Chennai. 6. The Director General of Police, Madras – 4. 7. The Public Prosecutor, High Court, Madras. 1 cc To Mr.S.Paneerselvam, Advocate, SR.17574 Copy to: The Section Officer, Criminal Section, High Court, Madras. Crl. A. No.820 of 2009 VSN(CO) sra 24/03/2010 https://hcservices.ecourts.gov.in/hcservices/