IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10-12-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.172 of 2008 Suresh .. Appellant/ Accused vs State by: Inspector of Police Kangayam Police Station (Crime No.195/2007) Erode District .. Respondent / Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court No.III, Dharapuram, made in S.C.No.134 of 2007 dated 31.1.2008. For Appellant : Mr.A.K.Kumaraswamy For Respondent : Mr.P.Kumaresan Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.III, Dharapuram, made in S.C.No.134 of 2007 whereby the sole accused/appellant stood charged under Sections 302 and 307 of IPC and on trial, he was found guilty as per the charges and awarded life imprisonment along with a fine of Rs.1000/- and default sentence for the first charge and 5 years Rigorous Imprisonment along with a fine of Rs.1000/- and default sentence for the second charge. 2.The short facts necessary for the disposal of this appeal can be stated thus: (a) P.W.1 is the father of the deceased Kamalam. P.W.2 is the daughter of Kamalam. P.W.3 is the younger sister of Kamalam. https://hcservices.ecourts.gov.in/hcservices/ P.W.4 is the minor daughter of the deceased. P.W.2 was given in marriage to the accused four years prior to the occurrence. There was a strained relationship since he used to come in a drunken mood and quarrel with her. She filed a divorce O.P. before a Court of civil law at Dharapuram, and it also ended in her favour. A divorce decree was also granted. Then, the deceased came to her mother's place, and she was living with them. The mother of P.W.2 made arrangements for her to run a tea stall, and P.W.2 was maintaining herself and her children by running the tea stall. (b) While the matter stood thus, on 4.3.2007 at about 9.00 P.M., P.Ws.1, 2, 3 and 4 along with the deceased were all sitting in front of the house of Kamalam, and they were talking about the conduct of the accused. At that time, the accused came over there and suddenly attacked the deceased Kamalam, his mother-in-law, with a wooden reaper on different parts of the body. When P.W.2 intervened, he took an aruval which was hidden at the back, and attacked her. When there was a distressing cry, he fled away from the place of occurrence with the weapons of crime. (c) Both the deceased Kamalam and also P.W.2 were taken to Kangayam Government Hospital where P.W.8 was the Doctor on duty. He first medically examined the deceased at about 9.30 P.M. The accident register copy is marked as Ex.P10. Then, at about 11.00 P.M., he examined P.W.2, and the accident register copy is Ex.P11. Thereafter, the deceased Kamalam was taken to the Government Hospital, Coimbatore, where P.W.9 was the Doctor. He medically examined and declared her dead. An intimation was given to the police. In the meanwhile, P.W.1 proceeded to the respondent police station and gave a complaint Ex.P1, at about 4.00 A.M. on 5.3.2007, on the strength of which a case came to be registered by P.W.15, the Sub Inspector of Police, in Crime No.195/2007 under Sections 302 and 307 of IPC. The printed FIR, Ex.P22, was despatched to the Court. (d) On receipt of the copy of the FIR, P.W.16, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3 and also a rough sketch, Ex.P23. He recovered from the place of occurrence the material objects including the sample earth and bloodstained earth. Thereafter, he conducted inquest on the dead body of Kamalam in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P24. Then, a requisition, Ex.P16, was given to the hospital authorities for the purpose of autopsy. (e) P.W.11, the District Police Surgeon and Professor of Forensic Medicine, Coimbatore Medical College and Hospital, on receipt of the said requisition, conducted autopsy on the dead body of Kamalam and has issued a postmortem certificate, Ex.P17, with his opinion that the deceased would appear to have died of head injuries about 12 to 24 hours prior to autopsy. (f) Pending the investigation, the accused was arrested on 6.3.2007. He came forward to give a confessional statement https://hcservices.ecourts.gov.in/hcservices/ voluntarily, and the same was recorded in the presence of witnesses. The admissible part is marked as Ex.P19, pursuant to which he produced M.O.3, wooden reaper, M.O.4, aruval, and M.O.7, bloodstained shirt, which were recovered under a cover of mahazar. Then, he was sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Sciences Department pursuant to the requisition made by the Investigator. Exs.P8 and P9 are the reports. On completion of investigation, the Investigating Officer 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 16 witnesses and also relied on 26 exhibits and 11 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The lower Court heard the arguments advanced, found the accused guilty as per the charges and awarded the punishment as referred to above. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Counsel made the following submissions: (i) In the instant case, the prosecution has examined P.Ws.1 to 4 as eyewitnesses. They are all interested witnesses since they are inter se related. P.W.1 is the father of the deceased. P.W.2 is the daughter of the deceased. P.W.3 is the younger sister, and P.W.4 is the minor daughter of P.W.2. Thus, they are all interested in the deceased. (ii) It is an admitted fact that there was a divorce proceeding between P.W.2 and the accused, and thus, the relationship was already strained. Under the circumstances, they have come forward to give false evidence. 5.The learned Counsel would further add that the evidence of all these witnesses if scrutinized carefully, would clearly indicate that they are not only contradictory to each other, but also self inconsistent, and hence their evidence should have been rejected; that according to the witnesses, they were all talking in front of the house about the accused, and at that time, he came there, and he was having a wooden reaper in hand, and then he attacked the deceased, and thereafter, he attacked P.W.2 when she came to the rescue of her mother, with an aruval; that it is highly improbable that the accused who was holding both the weapons namely wooden reaper and aruval, attacked one with reaper and the other with aruval; and that under the circumstances, it would cast a doubt whether such an incident could have taken place at all. 6.Added further the learned Counsel that the medical opinion canvassed also was not in support of the prosecution; that it is true that P.W.2 has been shown not only as an eyewitness, but also as an injured witness; but, P.W.2 was the main person who had got https://hcservices.ecourts.gov.in/hcservices/ the grudge against the accused; that under the circumstances, she has given false evidence, and hence the prosecution has not proved its case. 7.Added further the learned Counsel in the second line of argument that the accused due to provocation has acted so; that it is admitted by P.W.1 that in front of the house, P.W.1, the deceased and P.Ws.2 to 4 were all sitting and talking about the accused, and on hearing this only, the accused attacked the deceased and also P.W.2; that it is also an admitted fact that there was already a divorce proceeding between P.W.2 and the accused; that if to be so, there was nothing for those witnesses and also the deceased to talk ill of the accused; that being provoked by the same, he has attacked them, and thus, the act of the accused would not attract the penal provisions of murder, and it has got to be considered by this Court. 8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9.The prosecution by sufficient evidence has proved the fact that Kamalam, the mother of P.W.2, died following an incident that took place at about 9.00 P.M. on 4.3.2007 in front of the house of P.W.1. Following the inquest made by the Investigator, P.W.16, the dead body of Kamalam was subjected to postmortem by P.W.11, the Doctor, who has also deposed and through whom a certificate has also been marked to the effect that she died out of head injuries sustained by her. The fact that Kamalam died out of homicidal violence was never a subject matter of controversy before the trial Court, and hence it has got to be recorded so. 10.In order to prove the fact that it was the accused who attacked the deceased with the wooden reaper and death ensued as a direct consequence, and he has also attacked P.W.2 with aruval, the prosecution examined four witnesses namely P.Ws.1 to 4, out of whom P.W.4 was a minor. It is true that P.Ws.1 to 3 were all related to the deceased; but, on that ground alone, their evidence cannot be discarded, and before acceptance, the test of careful scrutiny must be applied. Apart from that, in the instant case, a strong circumstance against the appellant/accused was that P.W.2 was also injured in the same transaction. P.W.2 is the wife of the accused. When their relationship was strained, she filed a divorce OP, and the same has also been ordered. At that time, the marital relationship was actually severed. Thereafter, P.W.2 was living with her mother, the deceased, and she also made arrangement to her daughter to run a tea stall. Under the circumstances, the appellant has nothing to do there. But, he has gone to the place of occurrence at 9.00 P.M. and attacked the deceased with the wooden reaper, M.O.3, and the severely injured was taken to the hospital. She was medically examined by P.W.8, the Doctor. At the earliest in Ex.P10, the accident register copy, it is stated that she was attacked by a known person at 9.00 P.M. at the place of occurrence, and when she was taken to the Government Hospital, https://hcservices.ecourts.gov.in/hcservices/ Coimbatore, she was declared dead by P.W.9, the Doctor. That apart, in the same transaction, when P.W.2 went to the rescue of her mother, she was also attacked by the accused with aruval, M.O.4. Now, at this juncture, it is pertinent to point out that in a given case like this, where an occurrence witness happened to be an injured witness also, unless and until the Court is able to notice a strong circumstance or a reason is brought about, the evidence should not be discarded. In the instant case, P.W.2 has clearly narrated the entire incident. P.W.2 was taken to the hospital, and she was medically examined by P.W.8, the Doctor, to whom as found in Ex.P11, the accident register copy, she has clearly stated that she was attacked by a known person with aruval at the time and place. The contents of Ex.P11, the accident register copy, would clearly be indicative of the act of the accused since it is the earliest document. Added further, the evidence of P.W.2 is fully corroborated by the evidence of P.Ws.1 and 3. The ocular testimony projected through these witnesses stood fully corroborated by the medical evidence adduced through P.W.11, the postmortem Doctor, and his certificate. 11.Now, the contentions put forth by the learned Counsel for the appellant and narrated above, do not merit acceptance at all. The comment made by the learned Counsel and the criticism levelled against the evidence cannot be countenanced in the face of the cogent, convincing and acceptable evidence adduced by the prosecution. Yet another circumstance is the recovery of M.Os.3, 4 and 7 from the accused consequent upon the confessional statement given by him. A witness has been examined as P.W.12 for the arrest, confession and recovery of M.O.3, wooden reaper, M.O.4, aruval, and M.O.7, bloodstained shirt. The recovery of these weapons of crime namely M.Os.3 and 4, would be pointing to the nexus of the crime with the accused. 12.Yet another circumstance is that all these material objects along with other material objects were subjected to chemical analysis by the Forensic Sciences Department. A perusal of the serologist's report, Ex.P8, would clearly indicate that M.O.7 bloodstained shirt, not only contained the human blood, but also it tallied with the blood group found in the clothes of the deceased. Thus, the scientific evidence was also in support of the prosecution case. Under the circumstances, the Court has to reject the contentions put forth by the learned Counsel for the appellant. 13.As regards the second line of contention, the Court is afraid whether it could agree with the learned Counsel. At the time of occurrence, P.Ws.1 to 4 were sitting in front of the house, and they were talking about the accused. At that time, the accused who was not a resident of that area, came there suddenly with the wooden reaper and attacked the deceased on different parts of the body including head, and when P.W.2 naturally came to the rescue of her mother at that time, he attacked her with aruval on different parts of the body. The accused caused the death of Kamalam within a short span of time. From the act of the accused carrying a wooden reaper to the place of occurrence and attacking the deceased https://hcservices.ecourts.gov.in/hcservices/ at about 9.00 P.M. when she was sitting in front of the house, the intention could be well inferred. Under the circumstances, the act of the accused cannot, but be termed as murder. The lower Court was perfectly correct in finding him guilty as per the charge of murder and awarding life imprisonment. 14.As far as the second charge under Sec.307 IPC is concerned, P.W.2 has given evidence, and medical opinion is also canvassed. The accused attacked her with aruval on the forehead; but, it fell short of murder since she survived. Under the circumstances, the lower Court was perfectly correct in finding him guilty of that charge and awarding the punishment referred to above. There is nothing to disturb the judgment of the trial Court, and it has got to be necessarily sustained. 15.In the result, this criminal appeal is dismissed confirming the judgment of the lower Court. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. nsv/ To: 1.The Additional District and Sessions Judge Fast Track Court No.III, Dharapuram 2. Do Thro the Principal Sessions Judge, Erode 3.The Inspector of Police Kangayam Police Station Erode District 4.The Public Prosecutor, High Court, Madras. 5. The District Collector, Erode 6. The Superintendent Central Prison, Coimbatore 7. The Director General of Police, Chennai 1 cc to Mr.A.K. Kumaresan, Advocate, SR. 69279 CRL.A.No.172 of 2008 SGL (CO) kk 19/12 https://hcservices.ecourts.gov.in/hcservices/