IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.09.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.467 OF 2007 Selvaraj .. Appellant/1st Accused Vs. State by the Inspector of Police, Kuthalam Police Station, Nagapattinam District (Crime No.396/1997) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of conviction and sentence made by the learned Principal District and Sessions Judge, Nagapattinam in S.C.No.71 of 1998, dated 25.09.1998. For Appellant : Mr.V.Parthiban For Respondent : Mr.V.R.Balasubramanian, APP - - - - JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Principal Sessions Division, Nagapattinam made in S.C.No.71 of 1998 in a case of double murder, where the appellant herein stood charged under Section 302 IPC (2 counts) and A-2 stood charged under Section 302 r/w S.34 IPC (2 counts), tried and A-1 was found guilty under Section 302 IPC (2 counts) and A-2 under Section 323 IPC (2 counts) and A-1 was awarded life imprisonment for each counts and to pay a fine of Rs.2000/- each, in default to undergo three months R.I. under Section 302 IPC and A-2 was sentenced to undergo three months R.I. for each counts and to pay a fine of Rs.500/- each, in default to undergo two weeks R.I. each under Section 323 IPC (2 counts). 2.The short facts necessary for the disposal of this appeal can be stated thus: https://hcservices.ecourts.gov.in/hcservices/ a)P.W.1 is the daughter of deceased No.1 Balu and deceased No.2 Saroja. They were residing at Anaimelagaram Mariamman Koil Street. Both the accused, who are brothers, were residing in the house situated opposite row to the house of P.W.1. P.W.1 had two children, aged 6 and 4 years. On 5.9.1997 at about 7.00 p.m., the children of P.W.1 went to the house of the accused and were playing for some time. P.W.1 called both of them and scolded. The wife of A-1 took it mistakenly and quarrelled with P.W.1. At that time, the father of P.W.1, who came there, advised not to have any talks with the wife of A-1. At the time when this incident took place, both the accused were absent. b)Next day night, namely on 6.9.1997 at about 8.00 p.m., A-1 came to the house of P.W.1 and questioned about the quarrel and he used filthy language against P.W.1. P.W.1, in answer to the above, told him that since nobody was available in the house, it would be better for him to go. At that time, Balu, the father of P.W.1 and also the cousin brother of P.W.1, by name Senthil, came there and there was wordy altercation. When it was going on, the second accused also joined in that quarrel. At that time, A-2 took a casuarina stick and attacked the first deceased on his head. At that time, A-1 rushed to his house, took aruval, came back and attacked the first deceased on his chest. The second deceased Saroja, the wife of the first deceased, who was present at that time, intervened to rescue her husband. Immediately, A-2 attacked her with stick and A-1 also attacked the second deceased with aruval on her chest. Both the deceased fell down. Immediately, both the accused ran away from the place of occurrence. The occurrence was witnessed by P.Ws.1 and 2. c)Both the deceased Balu and Saroja were taken to the Government Hospital, Mayiladuthurai in an Auto. P.W.4, the Doctor, who as on duty at that time, medically examined them and declared them dead. The Accident Registers in respect of the first and second deceased were marked as Ex.P.7 and Ex.P.8 respectively. An intimation was given to Mayiladuthurai Police Station and in turn, it was sent to Kuthalam Police Station. P.W.11, the Inspector of Police, on receipt of the information, proceeded to the police station, Mayilduthurai and received Ex.P.9, the accident intimation. d)Then, P.W.11 proceeded to the Government Hospital, Mayiladuthurai and recorded the statement of P.W.1, which was marked as Ex.P.1. On the strength of Ex.P.1, the complaint, a case came to be registered in Crime No.396 of 1997 under Section 302 IPC. Ex.P.18, the F.I.R. was despatched to the Court. P.W.11, the Inspector of Police, proceeded to the place of occurrence and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.19, the rough sketch. He recovered material objects, including a stick, bloodstained earth and sample earth, under a cover of mahazar. Then, he proceeded to the Government Hospital and conducted inquest on the dead bodies of Balu and Saroja in the presence of the witnesses and panchayatdars and prepared Exs.P.20 and 21, the inquest reports respectively. The dead https://hcservices.ecourts.gov.in/hcservices/ bodies were sent for the purpose of autopsy along with requisitions. e)P.W.5, the Doctor attached to the Government Hospital, Mayiladuthurai, on receipt of the requisition, has conducted autopsy on the dead body of Balu and has issued Ex.P.10, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries to heart and lungs. P.W.6, the Doctor attached to Government Hospital, Mayiladuthurai, on receipt of the requisition, has conducted post- mortem on the dead body of Saroja and has issued Ex.P.11, the post- mortem certificate, wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries to vital organs lungs and heart. f)Pending investigation, the first accused was arrested on 7.9.1997 and he voluntarily came forward to give a confessional statement and the same was recorded in the presence of the witnesses, which was marked as Ex.P.5. Pursuant to the same, the first accused produced M.O.2, aruval, which was recovered in the presence of the witnesses under a cover of mahazar. The first accused was sent for judicial remand. The second accused surrendered before the Judicial Magistrate No.1, Kumbakonam on 10.09.1997. All the M.Os recovered from the place of occurrence, from the dead body of the both the deceased and also the M.Os recovered from the accused were sent for chemical analysis by the Forensic Science Department along with the requisition given by the Investigator through the Judicial Magistrate concerned, which resulted in two reports, namely Ex.P.16, the Chemical Analyst's report and Ex.P.17, the Serologist's report. On completion of the investigation, the Investigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charged levelled against the accused, the prosecution marched 11 witnesses and relied on 21 exhibits and 10 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The court below, after hearing the arguments advanced and looking into the materials available, took the view that the first accused was found guilty of murder on two counts and the second accused was found guilty under Section 323 IPC (2 counts) and awarded punishments as referred to above. Under these circumstances, this appeal has arisen at the instance of the first accused/appellant. 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, two witnesses, namely P.Ws.1 and 2, were examined as eyewitnesses and they are close relatives to both the deceased and under these circumstances, it would be quite clear that they were interested witnesses; that before accepting the evidence of those witnesses, the test of careful scrutiny has got to be applied and if that test is applied, https://hcservices.ecourts.gov.in/hcservices/ their evidence will not stand the test and that the lower court should have rejected their evidence. 5.Added further the learned counsel that in the instant case, the medical opinion canvassed through P.Ws.4,5 and 6, the Doctors and the accident registers and also the post-mortem certificates, did not corroborate the ocular testimony; that all would go to show that the case of prosecution is failed; that apart from that, so far as the arrest and recovery of aruval from the first accused is concerned, the evidence adduced in this regard is shaky and under these circumstances, this would not support the prosecution case and that in short, it could be submitted that the prosecution has miserably failed to prove its case. 6.The learned counsel for the appellant would further submit that in the instant case, the lower court has found A-1 guilty of murder on two counts; that even as per the prosecution case, there was an incident which took place on the previous day, that was on 05.09.1997 and at that time, both the accused were absent; that there was a quarrel between P.W.1 and the wife of A-1; that on the next day, namely on 6.9.1997 at about 8.00 p.m., A-1 went to the house of P.W.1 to question about her conduct on the previous day; that even as per the prosecution case, there was exchange of words and a quarrel arose and at that juncture, the incident has taken place; and that even assuming that the factual positions of the prosecution are taken to have been proved, the act of the first accused would not attract the penal provisions of murder, but it would be one culpable homicide not amounting to murder and hence the court has to consider the circumstances and the legal positions in this regard. 7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 8.It is not in controversy that in an incident that had taken place on 6.9.1997 at about 8.00 p.m. in the house of P.W.1, both Balu and Saroja were injured seriously and they were taken to the hospital, where P.W.4, the Doctor examined both and declared them dead. Following the inquest made by the Investigator in the presence of the witnesses and panchayatdars and preparation of Ex.P.2, the observation mahazar and Ex.P.19, the rough sketch, both the dead bodies of Balu and Saroja were subjected to post-mortem by P.W.5 and P.W.6, the Doctors, respectively. They have categorically opined in the course of Exs.P.10 and P.11, post-mortem certificates and as witnesses before the court that both of them died out of homicidal violence. The fact that both of them died out of homicidal violence was never questioned by the appellant/first accused at any stage of proceedings. Hence no impediment was felt by the trial court in recording so. Accordingly, the court is of the considered opinion that the finding of the lower court does not require any disturbance. https://hcservices.ecourts.gov.in/hcservices/ 9.In order to substantiate the charges levelled against the appellant/accused, before the trial court, the prosecution marched two witnesses as eyewitnesses. It is true, P.W.1 is the daughter of both the deceased and P.W.2 is the neighbour of P.W.1. The court is mindful of caution made by the Apex Court in its rulings that before accepting the evidence of related witnesses, the court must apply the test of careful scrutiny. Even if this test is applied, the court is of the considered opinion that their evidence has got to be accepted, since their evidence is cogent, convincing and also inspired the confidence of the Court. From the evidence of P.W.1, it would be quite clear that there was quarrel between herself and the wife of A-1 on 5.9.1997; that on 6.9.1997 at about 8.00 p.m., A-1 came over there and questioned about the same and further A-1 quarrelled with her father and A-2 also joined with A-1; that A-2 took casuarina stick and it was A-2, who first attacked the first deceased with the stick on the head and following the same, A-1 came with aruval and attacked the first deceased and when the mother of P.W.1 intervened, she was also attacked by A-1 and in that process, both the deceased died. The evidence of P.W.1 stood fully corroborated with the evidence of P.W.2. The prosecution had got advantage of both the accident registers of the first and second deceased, which were marked as Ex.P.7 and P.8, where the place and time of occurrence and two persons have attacked them were all shown. 10.Apart from that, in the instant case, the medical opinion was canvassed through P.Ws.5 and 6, the Doctors. They have conducted autopsy on the dead bodies of Balu and Saroja and they have categorically opined that both of them died out of shock and haemorrhage due to the injuries sustained. From the evidence of P.W.1, it would be quite clear that it was A-1, who caused death of both the deceased. So far as A-2 was concerned, it was he who attacked the first deceased on his head and the second deceased on her back with stick. Apart from that, A-1, on arrest, has given confessional statement voluntarily, which was marked as Ex.P.5 and pursuant to his confessional statement, M.O.2, aruval has been recovered. The evidence that was adduced by the prosecution for the arrest, confessional statement and the recovery of M.O.2, remains unshaken and would be pointing the nexus of the first accused with the crime. Apart from that, the scientific evidence was also placed before the court and it also stood in support of the prosecution case. In short, it could be stated that the prosecution has proved exactly the factual position that it was the first accused who attacked both the deceased with aruval and caused death of them. So far as A-2 is concerned, he has caused simple injury on the head of the first deceased. 11.The court also heard the second line of contention put forth by the learned counsel for the appellant. According to him, the first accused has acted pursuant to the sudden quarrel and was provoked by the circumstances. Hence the act of the first accused/appellant would not attract the penal provision of murder. After considering the materials available, the court is of the https://hcservices.ecourts.gov.in/hcservices/ considered opinion that the contention put forth by the learned counsel for the appellant cannot be accepted for more reasons than one. On the previous day, namely on 5.9.1997, there was a quarrel between the wife of A-1 and P.W.1. On the next day at about 8.00 p.m., it was A-1 who went to the house of P.W.1 and was talking in a filthy language to P.W.1, a woman. At that time, the first deceased, who came to the house, naturally questioned the conduct of A-1. At that juncture, the first accused rushed to his house and brought Aruval and attacked the first deceased and thus, he caused his death. When her husband was being attacked by A-1, the second deceased intervened and came to his rescue. At that time, the first accused also attacked the second deceased and caused her death. Thus, the circumstances noted are firstly, it was A-1 who went to the house of P.W.1 and secondly, he went to his house and brought aruval and thirdly, he attacked both the deceased after talking in a filthy language to P.W.1. Therefore, there was no reason for provocation that would have been caused to A-1 by anybody, but it was a self making one and thus, the provocation what is required to bring down the act of the first accused below murder, should be one caused by a opposite party and not by himself. Under these circumstances, the provocation caused was self making one, which would not bring down the act of the first accused/appellant short of murder. Hence the act of the first accused can be stated only as murder, as termed by the trial court and this court does not find anything factually or legally to interfere with the same. 12.Accordingly, the judgment of the trial court, convicting the appellant under Section 302 IPC (2 counts) and sentencing him to undergo life imprisonment for each count and also to pay a fine of Rs.2000/- each, in default to undergo three months R.I. each and the sentences were to run concurrently, is confirmed. This criminal appeal fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Principal Sessions Judge, Nagapattinam. 2.The Inspector of Police, Kuthalam Police Station, Nagapattinam District. 3.The Public Prosecutor, High Court, Madras. 4.The Superintendent, Central Prison, Cuddalore. 5.The District Collector, Nagapattinam. 6.The Director General of Police, Madras. +1cc to Mr.V.Parthiban, Advocate Sr 53350 GV (CO) km/6.10. CRL.A.NO.467 OF 2007 https://hcservices.ecourts.gov.in/hcservices/