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.137 OF 2008 Ethiraj .. Appellant/Accused Vs. State represented by Inspector of Police, B 6, Peelamedu Police Station, Coimbatore (Crime No.150/2006) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Coimbatore made in S.C.No.243 of 2006, dated 3.8.2007. For Appellant : Mr.C.D.Sugumar For Respondent : Mr.P.Kumaresan, APP JUDGMENT (The judgment of the Court was delivered by S.RAJESWARAN, J.) This appeal is against the judgment of the learned Principal Sessions Judge, Coimbatore made in S.C.No.243 of 2006, whereby the sole accused stood charged under Section 302 IPC, tried, found guilty as per the charge and awarded life imprisonment with fine of Rs.1000/-, in default to undergo 6 months R.I. 2.The brief facts that are necessary for the disposal of this appeal are as follows: a)P.W.1 is the son of the deceased and elder brother of the accused. He was residing at 4th street, Jyothi Nagar and was working as Manager in the Laboratory of Ramakrishna Hospital. On 14.2.2006, while he was on duty at noon hours, on a telephonic message, he admitted his mother in the I.C.U. ward of the hospital, in which he is working. His mother was brought to the hospital by one Radha and another and thereafter, the accused came. Despite treatment, the mother died at 1.30 p.m. on the same day. https://hcservices.ecourts.gov.in/hcservices/ b)P.W.1, thereafter, went to B-6 police station and gave a complaint (Ex.P.1). In that complaint, he has stated that his brother, the accused, often used to demand money from his mother and the accused is an alcoholic and used to quarrel with the mother for partitioning of the property. His mother was eking her livelihood from the rental income and she used to give money on demand to the accused and if not given, the accused used to beat her. On 15.2.2006, Radha, who brought his mother to the hospital, informed him that the accused forced his mother to drink "Sani powder", the poisonous substance and killed her. The accused further told Radha not to reveal this fact to anyone or else she would be killed. c)P.W.4, Radha alias Dhanalakshmi, is residing adjacent to the house of the deceased and she knows the deceased for the past 25 years. On 14.2.2006 at 11.30 a.m., she saw the accused running out of the deceased mother's house, shouting that his mother drank "Sani powder". Immediately, P.W.4, Radha, went inside the house and saw the deceased lying down. When asked the deceased as to why she drank "Sani powder", the deceased told her that the accused demanded money from her and also partition of the property and threatened the deceased to drink "Sani powder" on her own or else he would put his leg on her neck and thus she was forced to drink half of the substance, and the accused himself administered remaining half of "Sani powder" by kicking her on her mouth and chest. When the deceased was telling the truth to P.W.4, one Sampathkumar came inside, listening to their conversation. Thereafter, the accused threatened her (P.W.4) that she and her family members would be killed, if she discloses to anyone what the deceased had told her. P.W.4, thereafter, to make the deceased to vomit the poisonous substance forcibly taken by her, gave her the solution containing salt and tamarind. Then, she asked the above said Sampathkumar to bring an Auto and took the deceased to the hospital, where P.W.1 was working. The deceased was given treatment for half an hour in the hospital and even in the hospital, the accused, who came there, threatened P.W.4. As the mother of the accused died, the body was taken to the Government Hospital for post-mortem. d)On 14.2.2006, the Sub Inspector of Police, P.W.9, registered the F.I.R. on the basis of the complaint given by P.W.1 and the same was registered in Crime No.150 of 2006 (Ex.P.11) under Section 174 Cr.P.C. and the same was despatched to the Court. e)On the basis of the F.I.R., P.W.10, the Inspector of Police, 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.12, the rough sketch. Thereafter, he went to the hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.13, the inquest report. The dead body was sent for the purpose of autopsy. f)P.W.7, the Doctor attached to the Government Medical College Hospital, Coimbatore, on receipt of the requisition, conducted autopsy on the dead body of the deceased on 15.2.2006 and issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased appears to have died of poison by Aromin. https://hcservices.ecourts.gov.in/hcservices/ g)On 15.2.2006 at 12.00 noon, P.W.4, Radha earlier Dhanalashmi, came to B-6 Police station and gave a complaint to the Inspector and on that basis, the Inspector registered the second F.I.R. in Crime No.151 of 2006 (Ex.P.14). On the basis of the F.I.R., he investigated the mater and the case was changed from Section 174 Cr.P.C. to Section 302 IPC. At 6.30 p.m. on the very same day, the accused was arrested and he came forward to give confessional statement, which was recorded in the presence of the witnesses. Thereafter, the accused was sent for judicial custody. The Investigating Officer examined the witnesses and recorded their statements. The Investigating Officer took up further investigation and on completion of the entire investigation, he had filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 10 witnesses and also relied on 16 exhibits and 3 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 except the accused himself as D.W.1 and one exhibit was marked on his side. The trial court, after hearing the arguments advanced and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt, found the accused guilty as per the charge and awarded punishment as referred to above. Hence this appeal has arisen at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that according to the prosecution, P.W.4 is the witness, who has alleged that she heard the truth from the deceased that her son, namely the accused, administered the poison. P.W.4 referred to the presence of one Sampathkumar at the place of incident. But, the prosecution has failed to examine the said Sampathkumar and the trial court failed to take note of the non examination of Sampathkumar as one of the witnesses. According to the learned counsel, only to strengthen the case of the prosecution, the police introduced the alleged presence of the said Sampathkumar and that is why he was not examined at all. It is the contention of the learned counsel for the appellant that the prosecution has not at all produced any evidence to show that where the appellant had procured the alleged poisonous substance, which was said to have administered to the deceased mother and in the absence of such evidence, it is proved that the appellant would not have possessed the alleged substance. He further contended that the deceased was suffering from severe stomach ache and not able to bear the pain, she herself consumed poisonous substance and consequently, died at the hospital. Therefore, according to the learned counsel for the appellant, the appellant is entitled for acquittal in the hands of this court. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has considered the same carefully. https://hcservices.ecourts.gov.in/hcservices/ 6.It is not in dispute that the deceased drank poisonous substance (Sani powder) on 14.2.2006 and she was admitted in the hospital and consequently, despite treatment, died in the hospital itself on the same day. Initially, F.I.R. was registered in Crime No.150 of 2006 under Section 174 Cr.P.C. This F.I.R. was registered on the basis of the complaint given by P.W.1 initially. Later, on hearing the truth from P.W.4, Radha and her father, P.W.6, the case was altered to Section 302 IPC in Crime No.151 of 2006. The case of the prosecution is that the accused forced the victim to drink the poisonous substance and because of that, she died later in the hospital. 7.In order to substantiate the case, the prosecution examined 10 witnesses. P.W.1, the elder brother of the accused, stated that the accused is an alcoholic and he used to demand money from her deceased mother. Whenever money is given, he would not harm her mother. But, if it is refused, he would beat the deceased mother. On 14.2.2006, first he was under an impression that the deceased herself drank the substance and on 15.2.2006, P.W.4, Radha, informed the actual happenings that the accused himself forced the deceased mother to drink the poisonous substance, thereby committed homicidal murder. 8.P.W.4 has clearly stated that she knows the deceased for the past 25 years and on 14.2.2006 at about 11.30 a.m., the accused came running out of the house of the deceased, shouting that his mother drank "Sani powder". Immediately, P.W.4 rushed inside the house and questioned the deceased, who was lying down, for her act. But the deceased informed her that it was the accused who forced her to consume half of substance initially and the other half was forcibly poured into her mouth by the accused, after kicking her in the chest. She further stated that the accused threatened her with dire consequences both at the place of occurrence and later at the hospital. Only at 10.30 p.m. in the night, she informed her father that the accused threatened her and what was disclosed to her by the deceased. Her father, P.W.6 advised her to go to the police station to give the complaint and accordingly, both of them gave the complaint on the next day, after night hours, asking for protection. P.W.6, the father of P.W.4, in his evidence has stated that after hearing the death news on 14.2.2006, he visited the hospital and only at 10.00 p.m. in the night, his daughter P.W.4 informed him that the deceased did not commit suicide and the deceased was forcibly given poison by the accused, as revealed by the deceased herself to P.W.4. On the next day morning, i.e. on 15.2.2006, he first contacted P.W.1 and informed him what has really happened and thereafter, went to the police station and gave the complaint. 9.P.W.8 is the tenant of the deceased mother and she in her evidence has stated that only on 14.2.2006, the accused was found quarreling with his mother for partitioning the property and threatened her that if she did not do so, he would kill her by giving "Sani powder". On hearing this, she went to the house of the deceased and peeped inside, where she found the accused kicking the deceased mother on her chest and the deceased mother fell down. Thereafter, the accused, by holding his hands on her chest, forcibly dropped "Sani powder" solution in the mouth of the deceased. The accused has also seen P.W.8 https://hcservices.ecourts.gov.in/hcservices/ witnessing the incident and immediately, threatened her that he would kill her if she revealed this to any one. P.W.7, the Doctor, who conducted autopsy, has clearly opined that the death was due to poison. He further stated in the post-mortem certificate that the bones on the left rib of the deceased mother were found broken and there was contusion. Thus, from the evidence of the witnesses, it can be easily seen that the prosecution has proved the charge of murder being committed by the accused. 10.Though P.Ws.4 evidence was tried to be challenged on the ground that the accused refused to marry her and that was the reason for her evidence against him, there was no substance in the same and no evidence was let in in support of this contention. Similarly, P.W.1's evidence was also tried to be questioned on the ground that the brother wanted to have the property on his own, but there was no substance in this regard also. That apart, P.W.8 was the tenant in the next house during the relevant time and there was no enmity at all between P.W.8 and the accused. Further, the report of P.W.7, the Doctor, also has clearly established that not only the death was due to poison, but it was also found that a few bones in the left rib were broken. If the deceased had consumed poison on her own, there was no question of bones in the rib found broken. Therefore, the entire evidence has clearly established the commission of offence and the guilt of the accused. Of course, there are a few irregularities in the case of the prosecution, but they pale into insignificance when pitted against the strong, cogent, convincing, reliable and probable evidence including the ocular testimony. 11.It is a case where the son of the deceased has committed gruesome murder of his own mother by forcing her to gulp poisonous substance and caused her death. 12.Under these circumstances, it can be termed only as homicidal murder and the life imprisonment awarded by the court below cannot be said to be incorrect. 13.In the result, this criminal appeal fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Principal Sessions Judge, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 2.The Inspector of Police, B 6, Peelamedu Police Station, Coimbatore. 3.The Additional Public Prosecutor, High Court, Madras. 1 cc To Mr.C.D.Sugumar, Advocate, SR.68771. CRL.A.NO.137 OF 2008 KSK(CO) RVL 18.12.2008 https://hcservices.ecourts.gov.in/hcservices/