IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.36 OF 2008 Subramanian .. Appellant Vs. The State rep. by Inspector of Police, Portonovo Police Station, Cuddalore District .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Cuddalore made in S.C.No.193 of 2007, dated 7.12.2007. For Appellant : Mr.R.Srinivas For Respondent : Mr.P.Kumaresan, APP JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Principal Sessions Division, Cuddalore made in S.C.No.193 of 2007, whereby the sole accused/appellant stood charged under Sections 341 and 302 IPC, tried, found guilty and awarded life imprisonment and to pay a fine of Rs.3000/-, in default to undergo 3 years R.I. under Section 302 IPC and one month S.I. under Section 341 IPC and the sentences were ordered to run concurrently. 2.The short facts necessary for the disposal of this appeal can be stated as follows: a)P.W.1 is the brother-in-law and P.W.5 is the mother-in-law of the deceased Sudhakar. P.W.6 is the mother of the deceased. P.W.2 was employed in the TASMAC Shop. Sudhakar lost his wife and thereafter, his conduct was not only questionable, but he has also attempted to outrage the modesty of the women in that locality. On the date of occurrence, namely on 27.11.2006 at noon hours, when P.W.1 and the deceased were near the TASMAC Shop, the accused came there. The deceased and the accused stared each other. The accused told P.W.1 about the conduct of the deceased. Then, P.W.1 informed the accused not to have quarrel with him and he would inform to his mother. Accordingly, at about 2.00 p.m., https://hcservices.ecourts.gov.in/hcservices/ P.W.1 informed his mother about the conduct of the deceased. b)At about 8.30 p.m., the accused and the deceased entered into the TASMAC Shop and they stared each other. In order to avoid tussle between them, P.W.2 asked them to go out and both of them went out. At about 9.30 p.m., the incident has taken place. P.Ws.2,3 and 4 have witnessed the occurrence. The accused, who had suri knife, severed the head of the deceased Sudhakar and also stabbed him on his stomach, as a result of which, his intestine came out and the accused also cut his private part. The occurrence was seen by P.Ws.2,3 and 4. The accused fled away from the place of occurrence. c)P.W.1 on coming to know about the same, accompanied by others, went to the place and saw the dead body. P.W.1 proceeded to the respondent police station at about 11.00 p.m. and gave Ex.P.1, the complaint to P.W.12, the Sub Inspector of Police, who has registered the case in Crime No.289 of 2006 under Section 302 IPC. Ex.P.12, the F.I.R. was despatched to the Court. d)P.W.13, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.13, the rough sketch. He has also recovered bloodstained earth and sample earth and the other material objects from the place of occurrence under a cover of mahazar. He conducted inquest on the trunk of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.14, the inquest report. He also conducted inquest on the head portion of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.15, the inquest report. Thereafter, he joined the trunk and the head and conducted inquest in the presence of the witnesses and panchayatdars and prepared Ex.P.16, the inquest report. The dead body and the place of occurrence were photographed through P.W.10, the photographer. M.O.10(series) photos were marked. Then, the dead body was sent to the hospital for the purpose of autopsy. e)P.W.8, the Doctor, attached to Chidambaram Kamaraj Government Hospital, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.5, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of multiple injuries, shock cardio respiratory arrest and also due to the severance of head. f)Pending investigation, on 28.11.2006, P.W.13 arrested the accused and the accused came forward to give confessional statement, which was recorded in the presence of P.W.9, V.A.O., the admissible part of the same was marked as Ex.P.6. Pursuant to the same, the accused produced M.O.3, suri knife, M.O.8, bloodstained shirt and M.O.9, bloodstained lungi, which were recovered under a cover of mahazar. The accused was sent for judicial remand. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department, which resulted in Ex.P.10, the Chemical Analyst Report and Ex.P.11, the Serologist's report. On completion of the investigation, the Investigating Officer has filed the final report. https://hcservices.ecourts.gov.in/hcservices/ 3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 13 witnesses and also relied on 16 exhibits and 10 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court, after hearing the argument advanced on either side, took the view that the prosecution has proved the case beyond reasonable doubt and has made the judgment of conviction and sentence, which is the subject matter of challenge in this appeal. 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case; that according to the prosecution, P.Ws.1 to 4 were the eyewitnesses; that even a reading of Ex.P.1, the report, would clearly indicate as if P.W.1 has witnessed the entire incident, but in his evidence, it has been stated as if P.W.1 received a phone call and then went to the place of occurrence; that P.Ws.3 and 4 have not spoken anything about the presence of P.W.1; that according to the prosecution, the occurrence has taken place at 9.30 p.m.; that P.W.1 claimed that he went to the police station and gave a report at about 11.00 p.m., but he has categorically stated in his evidence that he has signed the F.I.R. only at about 7.30 a.m. on the next morning; that it would be quite clear that not only a delay is noticed in bringing the matter to the notice of the police, but it remained unexplained; that in Ex.P.1, the report, the names of P.Ws.2,3 and 4 were not found; that according to P.W.6, she accompanied by P.W.5 went to the place of occurrence and was staying there till morning, but nobody was present; that it would be quite clear that P.Ws.2,3 and 4 were not present at the place of occurrence; that apart from that, the presence of P.W.1 was not spoken by P.Ws.3 and 4 and thus, P.W.1 could not have been present at the place of occurrence; that so far as P.W.2 was concerned, his name is not found in the F.I.R. and hence P.W.2 could not have been present at the time of occurrence; that further, P.W.2 in his evidence has not spoken anything about P.W.1; that P.W.1 also has not stated in Ex.P.1, the complaint as to the presence of P.W.2 and that P.Ws.2,3 and 4 could not have seen the occurrence at all. 5.Added further the learned counsel that the evidence of P.W.4 would indicate that he could not have seen the occurrence at all; that further it would be quite clear that P.Ws.3 and 4 could not have seen the occurrence at all; that P.W.4 was the stock witness to the respondent police; that he has given evidence in the murder cases of Ramajeyam and Gopal; that the police has utilised his service for the purpose of the case; that so far as P.W.3 was concerned, he could not have seen the occurrence at all; that the arrest, confessional statement and the recovery could not have taken place as put forth by the prosecution; that according to P.W.1, the accused was actually in the police station at about 7.30 a.m., but the Investigator would claim that the accused was arrested and all the recoveries were made only in the afternoon; that the evidence of P.W.9, V.A.O. was nothing, but tissue of falsehood and thus, the claim of the prosecution as to the recovery of weapon of crime, bloodstained shirt and bloodstained lungi of the accused is of no help; that the knife which was recovered was only 16 cms. length; that according to the prosecution witnesses, the head was severed and the https://hcservices.ecourts.gov.in/hcservices/ intestine was coming out, which could not have been taken place as put forth by the prosecution and they are humanly impossible also and thus, this part of the evidence is also false; that even the knife was also subjected to chemical analysis and the report has been received, which would clearly reveal that though the human blood was found, the blood group could not be fixed and under these circumstances, the scientific evidence was also not in support of the prosecution case and hence the witnesses could not have seen the occurrence at all, but they have seen only the dead body. 6.The learned counsel would further add that according to P.W.2, on the date of occurrence, both the accused and the deceased came to the shop and they stared each other and hence P.W.2 asked them to quit and they went out; that the whole evidence would clearly indicate that the deceased attempted to outrage the modesty of the women in that area and therefore, he has number of enemies and that if the evidence is carefully scrutinized, it would be clear that the prosecution has not proved the case beyond reasonable doubt. 7.Added further the learned counsel that in the instant case, even if the court comes to the conclusion that the prosecution has proved the factual position that it was the accused who severed the head of the deceased and caused his death, it is not a case where the act of the accused could be termed as murder; that from the evidence available, it would be clear that the deceased lost his wife and thereafter, he was doing all illegal activities in that area and he was involved in number of murder cases and that he has got number of enemies and further, his activities remained intolerable. As per the evidence of P.W.1, the accused and the deceased had quarrel in noon hours and according to P.W.2, the accused and the deceased stared each other and he asked them to go out of the shop and they went out. Following the same, the incident has taken place and hence there was quarrel and the accused was provoked by the situation. Further, it is to be stated that the accused had sustained provocation and hence it is a case where the act of the accused cannot be termed as murder, but it would be one culpable homicide not amounting to murder and therefore, it has got to be considered by this court. 8.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 9.It is not in controversy that one Sudhakar, the son of P.W.6, was done to death in an incident that has taken place at about 9.30 p.m. on 27.11.2006 at the place of occurrence. Following the inquest conducted by P.W.13, the Inspector of Police, the dead body was subjected to post- mortem by P.W.8, the Doctor, who has given his categorical opinion as a witness before the court and also by issuing Ex.P.5, the post-mortem certificate that the deceased would appear to have died of injuries to the vital organs and also severance of head from the body. Further, the fact that the deceased died out of homicidal violence was never disputed by the appellant before the trial court and hence it has got to be recorded so. 10.In order to substantiate the act of the accused that it was the accused who attacked the deceased with knife and severed his head and https://hcservices.ecourts.gov.in/hcservices/ caused his death instantaneously, the prosecution has marched four witnesses as eyewitnesses, who are P.Ws.1 to 4. It is true, P.W.1 at the earliest has given statement before the police under Ex.P.1 as if he witnessed the occurrence, but at the time of his evidence, he has not stated so. Hence the evidence of P.W.1 was not useful to the prosecution, but the prosecution fortunately had the evidence of P.Ws.2,3 and 4. According to P.W.2, he was employed in TASMAC Shop and at about 8.30 p.m. on the date of occurrence, both the accused and the deceased came to the shop and they stared each other and P.W.2 asked them to quit and hence they went out. When he was actually in the shop at about 9.30 p.m., he heard a distressing cry, came out of the shop and found the accused actually severing the head of the deceased. Further, he stabbed on his stomach and the intestine came out and the accused also cut his private part and threw it. So far as the evidence of P.W.2 is concerned, this court is unable to see any reason to disbelieve it, since he is an independent witness and hence he does not fall within any criticism. 11.So far as the evidence of P.Ws.3 and 4 is concerned, the learned counsel for the appellant brought to the notice of the court certain discrepancies. It is true, P.W.4 was shown to have given evidence in two murder cases, because of which the court is of the considered opinion that his evidence cannot be discarded. Not even a suggestion has been put to the Investigating Officer, P.W.13 that P.W.4 was the stock witness of the police. Apart from that, P.Ws.3 and 4 have clearly explained as to how they happened to be in the place of occurrence. In a given case where the witnesses examined were found to be the chance witnesses, before accepting their evidence, the court must look into whether any explanation was tendered by them as to how they happened to be present at the time and place of occurrence. P.Ws.3 and 4 have clearly spoken under what circumstances they happened to be present in that place. Further, P.Ws.3 and 4 in one voice have spoken that they were present at the place of occurrence when the accused attacked the deceased, severed his head, stabbed on his stomach and his intestine has come out and also the accused cut his private part. The narration of the incident by P.Ws.3 and 4 would clearly indicate that without witnessing the occurrence, they cannot narrate so. Hence the evidence of P.Ws.3 and 4 have got to be accepted. 12.Much comment was made by the learned counsel for the appellant that in Ex.P.1, the complaint, the names of P.Ws.3 and 4 were not mentioned. The evidence of P.Ws.3 and 4 was to the effect that they have not stated anywhere that P.W.1 was present at that time. At this stage, the evidence of P.W.5 assumes importance. According to P.W.5, after getting information as to the death of Sudhakar, she accompanied by P.W.6 went to the spot and they were at the place of occurrence till morning, but nobody was found. Thus, it would be quite clear that P.W.1 went earlier on coming to know about the incident and proceeded to the police station and further P.Ws.3 and 4, who witnessed the occurrence, were not at all available at that time. But the prosecution has brought the evidence to show that they were examined at 4.30 a.m. on the next day morning and hence, at the earliest time, they were examined. The learned counsel brought to the notice of the court that all the statements of these witnesses had reached the court only on 4.12.2006 and thus, there was a delay. This court is unable to agree with the learned counsel for the appellant. Actually, the occurrence has taken https://hcservices.ecourts.gov.in/hcservices/ place on 27.11.2006 in the night hours and they were examined on the very day. There is a delay of a few days, but because of which, the court cannot come to the conclusion that it has been created. 13.Equally, so far as Ex.P.1, the report, is concerned, the learned counsel brought to the notice of the court the evidence of P.W.1, which is to the effect that he has signed the F.I.R. at 7.30 a.m. and thus, this would clearly indicate that though the occurrence has taken place at about 9.30 p.m. and though P.W.1 claimed that he went to the police station and gave the complaint at 11.00 p.m., he has signed the F.I.R. only at 7.30 a.m. on 28.11.2006 and this would clearly indicate that the F.I.R. has come into existence only on the next day morning. This contention cannot be countenanced for the reason that according to P.W.1, immediately after coming to know about the occurrence, he went to the police station and gave Ex.P.1, the report. According to P.W.12, the Sub Inspector of Police, he got the report and on the strength of the same, he registered the case at about 11.00 p.m. and the crime number has been assigned. Not even a suggestion was put to P.W.12 that the case was not registered at 11.00 p.m. as claimed by him. Added further, P.W.1 has stated that he has signed the F.I.R. at 7.30 a.m. on 28.11.2006. From it, it could be easily seen that when he got the copy of the F.I.R., he has signed and got the copy of the same. While the investigation was actually commenced by P.W.13 after the receipt of the copy of the F.I.R. during night hours, no question of registration of the case at 7.30 a.m. would arise. Hence these contentions do not carry any merit whatsoever. 14.In the instant case, the prosecution had the benefit of ocular testimony of P.Ws.3 and 4, who happened to be at the place of occurrence and they narrated the incident and their evidence has inspired the confidence of the court. Hence the court has to take the evidence of those witnesses in order to find out the guilt of the accused/appellant. 15.The second line of argument made by the learned counsel for the appellant was that the act of the accused was due to provocation. The court is at a loss to understand as to how this argument could be sustained. In the instant case, it is true, there is sufficient materials available to show that the deceased was actually the womaniser and he attempted to outrage the modesty of number of ladies, but it cannot give any right to the accused to take away his life. It is true, there was quarrel between both of them in the morning hours and further the evidence of P.W.2 was to the effect that at 8.30 p.m., both of them came to the shop and they stared each other, but there was not even a quarrel and there was nothing to provoke the accused to commit the crime. At about 9.30 p.m., the occurrence has taken place. There is no evidence to show that there was any quarrel between the accused and the deceased or there was anything happened to provoke the accused to act so. In the absence of same, this court is unable to agree with the learned counsel for the appellant in this regard. Thus, the act of the accused that he severed the head of the deceased and also stabbed him on his stomach, as a result of which the intestine came out, in the opinion of the court, can be termed that it was one intentional. Therefore, the judgment of the trial court has got to be affirmed and there is nothing to interfere either factually or legally. https://hcservices.ecourts.gov.in/hcservices/ 16.In the result, the judgment of conviction and sentence imposed by the trial court is sustained. This criminal appeal fails and the same is dismissed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vvk To 1.The District Munsif-cum-Judicial Magistrate Portonovo, Cuddalore District. 2.-do- Thro' The Chief Judicial Magistrate, Cuddalore District. 3.The Principal Sessions Judge, Cuddalore. 4.Inspector of Police, Portonovo Police Station, Cuddalore District. 5.The Superintendent, Central Prision, Cuddalore. 6.The Additional Public Prosecutor, High Court, Madras. 7.The Superintendent of Police, Cuddalore District. + 1 CC to Mr.R.Srinivas, Advocate SR.NO.68522 CRL.A.NO.36 OF 2008 JSV(CO) EM/17.12.08 https://hcservices.ecourts.gov.in/hcservices/