IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-6-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.214 of 2007 Murugesan .. Appellant vs State rep. By Inspector of Police Tirupur Rural Police Station Coimbatore District Cr.No.289/2005 .. Respondent Criminal appeal filed under Sec.378 of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Fast Track Court No.V, Coimbatore at Tirupur, made in S.C.No.44 of 2006 dated 30.5.2006. For Appellant : Mrs.jayasri Baskar For Respondent : Mr.N.R.Elango Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.V, Coimbatore at Tirupur in S.C.No.44 of 2006 whereby A-1/appellant stood charged along with A-2, tried, found guilty under Sections 341 and 302 of IPC and sentenced to pay a fine of Rs.500/- under Sec.341 IPC and to undergo life imprisonment under Sec.302 IPC, while A-2 was acquitted of the charges. 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.3 is the wife of the deceased Sakthivel. P.W.1 is the sister of P.W.2. P.W.2 developed intimacy with A-1. They were carrying on electric shop at Karur. Sustaining a loss, they went to Tirupur and were carrying on a grocery shop. There also A-1 had a wayward life. Under the circumstances, P.W.1 brought her sister P.W.2 home and helped her to have a petty shop. Accordingly she was carrying on the same. When P.W.2 was carrying on the shop, Sakthivel, the husband of P.W.3, was assisting her in purchasing the https://hcservices.ecourts.gov.in/hcservices/ materials. The appellant who came to the place, on coming to know about the same, developed a grudge and thus he was on inimical terms with the deceased. (b) On the date of occurrence that was on 24.2.2005 when P.Ws.4 and 6 were coming in a moped, they found the appellant along with the other accused standing in the way and waylaying the deceased who was coming in a two wheeler, and A-1 stabbed him uttering the words "Because of you, Jothi is refusing to come and live with me. You should be finished off". P.W.5 who was also on his way, found A-1 standing with a knife nearby the dead body of Sakthivel. Both the accused fled away from the place of occurrence. P.W.1 on coming to know about the same, proceeded to the spot, found the dead body, went to the respondent police station and gave Ex.P1, the complaint, to P.W.13, the Sub Inspector of Police, on the strength of which a case came to be registered in Crime No.289/2005 under Sec.302 of IPC. The printed FIR, Ex.P16, was despatched to the Court. (c) P.W.14, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P17. Then he conducted inquest on the dead body of Sakthivel in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P18. The dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy. (d) P.W.10, the Assistant Surgeon, attached to the Government Headquarters Hospital, Coimbatore at Tirupur, on receipt of the said requisition conducted autopsy on the dead body of Sakthivel and has issued a postmortem certificate, Ex.P10. He has given his opinion under Ex.P9 that the deceased would appear to have died of shock and haemorrhage due to injury to heart. (e) Pending the investigation, A-1 was arrested. He came forward to give a confessional statement voluntarily, which was recorded. The admissible part is Ex.P4, pursuant to which he produced a knife, pant and shirt, all bloodstained, and they were all recovered under a cover of mahazar. Following the same, A-2 was also arrested. They were sent for judicial remand. All the material objects were subjected to chemical analysis. Ex.P13 is the chemical analysis report, while Ex.P14 is the serology report. 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 substantiate the charges, the prosecution examined 14 witnesses and also relied on 19 exhibits and 17 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. No defence witness was examined. The trial Court heard the arguments advanced and on scrutiny of the evidence, took the view that the prosecution has proved the case beyond reasonable doubt in respect of A-1 and hence found him guilty and awarded the punishment while it acquitted https://hcservices.ecourts.gov.in/hcservices/ A-2. Hence this appeal at the instance of the A-1 before this Court. 4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that the occurrence, according to the prosecution, has taken place on 24.2.2005 at about 10.00 P.M.; that two witnesses were examined as P.Ws.4 and 6, out of whom P.W.4 has turned hostile; that according to the prosecution, P.W.6 who claimed to be the relative of both the deceased and also P.Ws.1 to 3, has seen the occurrence directly at about 10.00 P.M. on 24.2.2005; that he was examined by the police only on 26.2.2005; that if really P.W.6, a relative, had seen the occurrence, he should have brought the same to the notice of P.Ws.1 to 3 either, or went to the police station to lodge a complaint, but not done so; that this would clearly be indicative of the fact that P.W.6 could not have seen the occurrence at all; that equally P.W.5 though claimed that he saw A-1 standing with the knife nearby the dead body of the deceased Sakthivel, was examined by the police only on 26.2.2005; that he has also not informed to P.Ws.1 to 3 nor had he given a complaint; that it also casts a doubt whether P.W.5 could have been in the place of occurrence at the time when the occurrence had taken place; that P.W.4 has turned hostile and thus his evidence was not available to the prosecution; that the Investigator would claim that A-1 was arrested on 26.2.2005, and following the same, he gave a confessional statement voluntarily, and the same was recorded following which he produced a knife, pant and shirt, all bloodstained, and they were all recovered under a cover of mahazar; that the evidence of the Investigator was thoroughly belied by the evidence of P.Ws.1 to 3; that they have categorically stated that A-1 was taken from his house at about 3.00 A.M. on 25.2.2005; that this would clearly indicate that the alleged arrest, confession and recovery were nothing but false, and that part of the evidence should have been rejected. 5.Added further the learned Counsel that as per the inquest report, the deceased was last found alive by one Jagannathan, but that witness has not been examined and thus, the prosecution has miserably failed failed to prove its case. 6.Added further the learned Counsel in the second line of argument that according to P.W.6, the eyewitness, there was a quarrel between the deceased and A-1 preceding the occurrence; that P.W.3 has categorically admitted that the relationship became strained and A-1 was inimical to the prosecution witnesses' family in view of the fact that the deceased Sakthivel was helping P.W.2 Jothi in the conduct of her petty shop, and thus, all would go to show that there was sufficient cause for the appellant/A-1 getting provoked at the time of the occurrence; that there was a quarrel also even according to P.W.6; that under the circumstances, the act of A-1 even assuming to have been proved, would not attract the penal provision of murder, and this position has got to be considered by this Court. 7.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. https://hcservices.ecourts.gov.in/hcservices/ 8.The facts that one Sakthivel, the husband of P.W.3, was done to death in an incident that had taken place during the night hours at about 10.00 P.M. on 24.2.2005, and following the same, the inquest was made by the Investigator, P.W.14, and thereafter, the dead body was subjected to autopsy by P.W.10, the Doctor, are all remained proved. The postmortem Doctor has given a categorical opinion that the deceased died due to shock and haemorrhage due to the injury to heart. The fact that he died out of homicidal violence was never disputed by the appellant before the trial Court, and hence it has got to be recorded so. 9.In order to substantiate that it was A-1 who stabbed him to death, the prosecution examined two witnesses namely P.Ws.4 and 6, out of whom P.W.4 turned hostile. P.W.6 has categorically stated that at about 10.00 A.M. on 24.2.2005, he was coming in a moped at the place of occurrence, and at that time, he found A-1 along with the other accused, and it was A-1 who stabbed him stating "So long you are alive, Jothi would not come and live with me." Despite the cross-examination in full, the evidence of P.W.6 remained unshaken. It is further to be pointed out that it is true that P.W.4 who accompanied P.W.6 had turned hostile. But it cannot be a reason to reject the testimony of P.W.6. The evidence of P.W.6 was cogent and also inspired the confidence of the trial Court, and it has been rightly accepted. 10.Apart from the evidence of P.W.6, the prosecution to its advantage had the evidence of P.W.5. According to P.W.5, he was nearby the place of occurrence at that time, and he found the dead body of Sakthivel, and A-1 was standing nearby with the knife in hand. This, in the considered opinion of the Court, is one of the strong circumstances in favour of the prosecution and also stood in corroboration of the evidence of P.W.6. 11.Much comment was made by the learned Counsel for the appellant on the evidence of P.Ws.5 and 6 that they are related to P.Ws.1 to 3, and if they had really seen the occurrence, they should have immediately rushed to the police station or informed to P.Ws.1 to 3 about the occurrence; but not done so, and hence their evidence was doubtful. In a given situation like this, the frame of mind and the conduct of everybody would differ. P.Ws.5 and 6 after seeing such an occurrence, should have been under the grip of psychic fear, and under the circumstances merely because they have not informed to the police immediately or went and informed to P.Ws.1 to 3, it cannot be stated that they could not have seen the occurrence at all. They were examined by the police on 26.2.2005, and they have categorically spoken as found in the evidence before the trial Court. No contradiction or omission is brought to the notice of the trial Court in their evidence. In such circumstances, the trial Court has rightly accepted the evidence of P.Ws.5 and 6. 12.As far as the criticism levelled by the learned Counsel for the appellant as to the arrest of A-1 and recovery of the material objects from him is concerned, this Court has to necessarily accept the same. Further, the Investigator claimed that A-1 was arrested on https://hcservices.ecourts.gov.in/hcservices/ 26.2.2005. P.Ws.1 to 3 have categorically deposed that he was taken from his house on 25.2.2005, night at about 3.00 A.M. From this evidence, it would be quite clear that the case of the prosecution as to the arrest, confession and recovery has got to be rejected. Even after rejection of that piece of evidence, the prosecution could sustain its case in view of the evidence adduced by the prosecution and discussed above. That apart, the medical opinion canvassed stood in favour of the ocular testimony projected through P.W.6. Under the circumstances, this Court has to necessarily record its finding that it was A-1 who stabbed the deceased to death. As far as A-2 was concerned, the prosecution failed to bring home the guilt of A-2. The trial Court was perfectly correct in rejecting the case of the prosecution insofar as A-2. 13.Coming to the second line of argument that there was a quarrel preceding the occurrence, and it is spoken to by P.W.6 also, and A-1 was provoked by the deceased since he was assisting Jothi in carrying on the petty shop, and thus the act of A-1 would not attract the penal provision of murder, the Court has to necessarily discountenance the same for the following reasons. From the evidence it would be quite clear that P.Ws.1 and 3 are sisters of P.W.2. It is not the case of the defence that the appellant/A-1 ever married P.W.2. However he developed illicit intimacy, and he was living with her at Karur and thereafter at Tirupur, and he also maintained her. At that juncture, it was P.W.1 who took her to the native place and also helped her to carry on the petty shop. In that process the deceased helped her. It is quite natural, and there is nothing found to be against the ordinary course in lending a helping hand. Further in the instant case, the appellant/A-1 could not have anything to be provoked. There is no provocation much less sudden provocation. According to P.W.6, they were actually quarrelling at that time. It has to be borne in mind that the occurrence has taken place during night hours in a public place. When the deceased was coming, he was waylaid by A-1, and A-1 was armed with a knife. But the deceased remained unarmed. Whenever a person remained unarmed, the person who was armed with a weapon, would take advantage of the situation and stab him. Thus it cannot be stated to be any quarrel. Even the words as spoken to by P.W.6, under the circumstances, cannot be taken as quarrel as one contemplated under the exception to Sec.300 IPC. Therefore, the act of A-1 was intentional in waylaying and stabbing him. The act of A-1 would fall within the definition of murder as envisaged under Sec.300 of IPC. The trial Court was perfectly correct in finding him guilty under Sections 341 and 302 of IPC and awarding punishment as stated above. There is nothing to interfere in the same either factually or legally. 14.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ nsv/ To: 1.The Additional Sessions Judge Fast Track Court No.V Coimbatore at Tirupur. 2.The Inspector of Police Tirupur Rural Police Station Coimbatore District Cr.No.289/2005 3. The District Collector, Tirupur. 4. The Director General of Police, Chennai. 5. The Superintendent, Central Prison, Coimbatore. 6.The Public Prosecutor, High Court, Madras. + 1 cc to Mr.Jaya Sri Baskar,Advocate,Sr.25486 CRL.A.No.214 of 2007 MBS(CO) EM/3.7.09 https://hcservices.ecourts.gov.in/hcservices/