IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.01.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No.330 of 2007 Velukkan M/A 55 years S/o Vellutha .. Appellant/Accused -vs- State represeted by Inspector of Police Cherampadi Police Station Nallakottai Circle (Crime No.17 of 2005) .. Respondent/Respondent Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgment dated 27.10.2006 made in S.C.No.48 of 2006 on the file of the learned Sessions Judge, Nilgiris at Uthagamandalam. For Appellants :: Mr. Kousik Murali for Mr. V. Sairam For Respondent :: Mr.P. Kumaresan Addl. Public Prosecutor JUDGMENT (Judgment of the court was made by D. MURUGESAN,J.) The appellant is the sole accused who was put on trial in S.C.No.48 of 2006 on the file of the learned Sessions Judge, Nilgiris at Uthagamandalam, for the offence under Sections 302 and 324 I.P.C. By the Judgment dated 27.06.2007 he was found guilty, convicted and sentenced to undergo imprisonment for life for the offence under Section 302 I.P.C. and further sentenced to undergo one year rigorous imprisonment for the offence under Section 324 I.P.C. 2. The legality of the above Judgment of conviction and sentence is put in issue in this appeal. The prosecution case as put forth before the court below is as follows: https://hcservices.ecourts.gov.in/hcservices/ The accused and the deceased are husband and wife. P.W.1 is the brother of the deceased. The accused had the habit of consuming alcohol and used to demand money from his wife, the deceased. On the fateful day, that is on the evening of 27.11.2005, when both the accused and deceased were returning after their routine coolie work, the accused demanded money from the deceased for the purchase of alcohol for his consumption. When the deceased refused to part with the money, the accused appears to have hit the deceased with stone tied in a cloth and caused number of injuries all over the body more particularly on the left forehead, to which the deceased succumbed. The above act of the accused was witnessed by P.W.1 who also sustained injury when he made an attempt to save the deceased. Thereafter, P.W.1 fearing his life ran away from the scene of occurrence and on the next day morning i.e., on 28.11.2005 at 11.00 a.m. when he saw that the deceased was dead, immediately he lodged a complaint to P.W.9, the Sub-Inspector of Police, Ambalamula Police Station, who registered a case in Cr.No.171 of 2005 under Section 302 I.P.C. and forwarded the F.I.R. (Ex.P.13) to the Judicial Magistrate and the copy of F.I.R. to the Inspector of Police. Since, P.W.1 sustained injuries, he sent him to the Government Hospital for treatment under police memo. On receipt of the F.I.R., P.W.10 the Inspector of Police rushed to the scene of occurrence at 2.00 p.m. on the same day and prepared P.W.2 Observation Mahazar, Rough Sketch Ex.P.14 and seized M.Os.2 and 3, viz., bloodstained earth and ordinary earth respectively under Ex.P.3 Mahazar in the presence of the witnesses. He has also taken arrangements to take photographs of the deceased. Further, on the same day, P.W.10, the Inspector of Police, conducted the Inquest in the presence of the Panchayatdars and prepared Ex.P.15 Inquest Report. On the requisition of P.W.10, P.W.8, the Doctor has conducted the Post Mortem on 29.11.2005 at 12.45 a.m. and issued Ex.P.12, Post Mortem Certificate. On 29.11.2005 at about 6.00 a.m., P.W.10 arrested the accused near Pattavayal Bus Station and recorded his confession statement in the presence of witnesses and seized M.O.1 the "fU';fy; " tied with a cloth. He sent the accused to the judicial custody. After examining the witnesses and on receipt of the Chemical Report, P.W.10 completed the investigation and filed Charge Sheet against the accused for the offences under Sections 302 and 324 I.P.C. 3. P.W.8, the Doctor who conducted the Post Mortem on the body of the deceased has found the following injuries: 1.Lacerated wound left side below lower lip about 3X1 cm X 1 cm depth thro & thro. 2.Mobility of lower jaw in front 3.Contusion rt. Cheek measuring about 5X4X1/2 Cm 4.Mouth & rt. Eye swollen 5.Oblique lacerated would across left eye brow measuring 3X3/4 Cm X ½ cm lower jaw fully mobile. 6.Blockish discoloration whole of left side of the face 7.Abrasion over the rt. Breast measuring 3X6cm https://hcservices.ecourts.gov.in/hcservices/ 8.Multiple vertical abrasion occupying whole of upper back & lumber region numbering 16-18 9.Multiple abrasion behind left shoulder about 12-14 in number, each measuring 2-3 mm in diameter measuring and 1 measuring 2 X ¼ cm. 10.Multiple abrasion over whole left gluteal region numbering 20-24 with various measurement varying from 2 X 2 mm upto 3 X ¼ cm in area 11.Verticle incised wound at base of left little finger dorsaily measuring 2 X ¼ cm X 3 cm 12.Contusion over dorsum of hand and radial border measuring 6 X4 cm. 13.Lacerated would 1 inch above rt. Patella measuring 1 x 1 cm. 14.Lacerated wound medical aspect of 4t. Patella 1x1 cm 15.Multiple ant bite marks over inferior aspect of left breast over an area 8 X 5 cm. 16.Maggots present over right eye and right upper cheek. She opined that the cause of death was due to multiple injuries to head producing injury to brain and vital centers of brain. 4. Prosecution has examined 10 witnesses and marked 20 exhibits and produced 6 M.Os. when the accused was questioned under Section 313 of the Criminal Procedure Code, as to the incriminating materials appearing against him, he totally denied them as false. No witness was examined and no document was marked on his side. Having considered the evidence placed by the prosecution, the learned Sessions Judge found the accused guilty, convicted and sentenced as stated earlier. 5. Mr. Kousik Murali, learned counsel appearing for the appellant/accused has submitted that the presence of P.W.1 in the scene of occurrence itself is highly doubtful and therefore no reliance can be placed on his evidence. In support of the said contention, learned counsel would submit that the conduct of P.W.1 would go to show that he was not present, particularly when the deceased who is none other than his sister, was attacked by the accused he has not even informed to anybody as to such attack till the next day morning 8.00 a.m. when the accused came to the house. He has gone to the scene of occurrence only when he was informed by the accused himself that he has assaulted the deceased and thereafter only he has gone to the police station and lodged the complaint at 11.30 a.m. Though he has spoken about the accused coming to the house on the morning of 28.11.2005, he has not mentioned anything about the accused coming to the house in the evidence. He would also submit that though P.W.1 also sustained injuries and claims to be an injured witness, he has not gone to the hospital to take treatment till 29.11.2005 and that too, after the inquest was conducted. He would also submit that P.W.1 himself has admitted that he and his wife by name Meenatchi have also accompanied the accused to the place where the deceased was lying, https://hcservices.ecourts.gov.in/hcservices/ on the morning on 28.11.2005, the prosecution for the best reasons known to it, has not examined the said Meenatchi, throwing serious doubt about the evidence of P.W.1 himself. Except the evidence of P.W.1, there is no other evidence available to implicate the accused for the occurrence. Hence, the learned counsel for the appellant would submit that the presence of the P.W.1 in the scene of occurrence and consequently his evidence is totally unreliable to sustain the conviction. 6. He would also submit that the medical evidence also does not support the case of the prosecution as put forth by P.W.1. According to P.W.8, maggots could have appeared between 3 to 5 days after the death and if the evidence of P.W.1 is acceptable as to the time of occurrence viz., on 27.11.2005, certain maggots could not have appeared when the post mortem was done on 29.11.2005 at 1.00 p.m. Learned counsel would further submit that the prosecution has also failed to prove M.O.1. It is the case of P.W.1 that the accused had attacked the deceased with a stone, whereas, there is absolutely no explanation by the Investigating Officer as to how he came to the conclusion that the stone was "fU';fy; ". Even the inquest was conducted on 28.11.2005, the seizure of M.O.1 itself was made only on the next day. If the above discrepancies are considered together, the same would go to show that P.W.1 is not a reliable witness and he has not come with a true version as to the occurrence. 7. We have also heard Mr.P.Kumaresan, learned Additional Public Prosecutor for State. He would submit that P.W.1 is a reliable witness and his evidence is highly natural. He being the brother in law of the accused, had naturally made an attempt to save his sister, the deceased. while the accused attacked the deceased and when he also sustained injuries, naturally he tried to escape from the scene at the relevant point of time and he could not have questioned the accused and therefore only he kept quiet. Further, the next day, when the accused retuned to the house and when P.W.1 asked about the whereabouts of the deceased, he replied that he had beaten the deceased, and lying at the place where she was beaten. Therefore, both the accused and P.W.1 and his wife went to the place, by that time the deceased was found dead. Only thereafter P.W.1 went to Police Station to lodge the complaint. Therefore, learned Additional Public Prosecutor that the conduct of P.W.1 who has not approached the police station immediately, has been properly explained by the above evidence and the conduct is quite natural. He would also submit that there was no suggestion whatsoever put to P.W.1 to elicit any of the grounds in favour of the accused or to shatter the evidence spoken to by P.W.1. He would also submit that the medical evidence is also supporting the case of the prosecution inasmuch as the Post Mortem Certificate referred to the injuries caused by the accused on deceased on her left forehead with stone. P.W.8, Post Mortem Doctor has also spoken about the fact that such injury could have been caused by the stone like M.O.1. He would also submit that the Doctor has also opined that maggots even could https://hcservices.ecourts.gov.in/hcservices/ form from third day onwards. In this case the occurrence had taken place at 6.30 p.m. on 27.11.2005 and the Post Mortem had been conducted on 29.11.2005 at about 1.00 p.m. The medical evidence also supports the formation of maggots as well. He has also submitted that the reference to the stone as "fU';fy; " for which Inquest was conducted by the investigation officer as well as the reference to mere stone by P.W.1 are not that much vital to throw away the prosecution case. More or less M.O.1 is a stone and description of a stone may differ from person to person. 8. We have given our anxious consideration to the rival contentions. 9. Before we consider the evidence, we must keep it in mind that the accused, deceased and P.W.1 are tribals living in a remote forest area and they are illiterates. There is no dispute that the accused had the habit of consuming alcohol and he used to demand money from the deceased, his wife. To this effect P.W.1 has spoken to in chief. Such evidence has not been contradicted by the accused in cross examination in any manner. On the fateful day when the accused and deceased returned after their routine coolie work, P.W.1 also came across and saw the accused beating the deceased with M.O.1 tied in a cloth. Naturally, he being the brother of the deceased, had intervened and in that process he has also sustained injuries which has been spoken to by P.W.8, who issued Accident Register Ex.P.10. Naturally when he was also attacked by the accused, he ran away from the place of occurrence to avoid further attack and at that point of time, he could not have questioned the deceased as to the attack on the deceased and he has not aware that the deceased died. Therefore, he kept quiet till the accused himself came to the house to inform that the deceased was lying in the same place and therefore it is quiet natural that P.W.1 had taken his wife by name Meenatchi along with the accused to the place of occurrence and found the deceased was deed and the body was lying in the ground. Then only he realised that the deceased was murdered. Therefore, he ran to the police station and lodged complaint. The above conduct of the accused in not approaching the police immediately is quite natural and acceptable having regard to the way of living coupled with their illiteracy and it is quite common that husband used to beat the wife and the same is not taken that much seriously by other family members. Therefore, the contention of the learned counsel for the appellant/accused that in view of the conduct of the P.W.1, his presence itself is doubtful, cannot be accepted. Further in his cross examination he has specifically mentioned that he has no animosity against the accused and therefore P.W.1 had no reason to falsely implicate the accused. We must keep in mind that P.W.1 is also an injured witness. Of course, he has taken treatment from P.W.8 only on 29.11.2005 and the delayed treatment by itself would not lead us to conclude that he has not come up with true version. In fact the Accident Register Ex.P.10 refers to the fact that P.W.1 has sustained the injury when he was attacked by one known person at 6.30 p.m. on 27.11.2005. The fact that the accused used to demand money from the deceased is also spoken to by P.W.2 who is an https://hcservices.ecourts.gov.in/hcservices/ independent witness. P.W.2 has also spoken that on the evening on 27.11.2005 at about 6.00 p.m., he saw the accused demanded money by the deceased from the deceased to purchase of alcohol and was quarreling. This evidence corroborates with the evidence of P.W.1 as to the demand of money by the accused from the deceased and there was a quarrel between the accused and the deceased. P.W.2 has also stated that after the quarrel he also heard the screaming noise of a person while running. Hence we are of the considered view that P.W.1 is an injured eye witness, who has come forward only to state the truth implicating the accused for the offence, the murder of the deceased. 10. Coming to the next question as to the medical evidence, it is seen that P.W.8 the Doctor, who has conducted the Post Mortem, has noticed the serious injury on the left forehead of the deceased apart from other various injuries on the body of the deceased as narrated earlier. The said injury is spoken to by P.W.1. The cause of death is also due to the multiple injuries on head resulting internal injury to brain and vital centres of brain. Hence, we are of the considered view that the medical evidence also supports the prosecution case. 11. In so far as the contradiction in the evidence in P.W.1 and the Investigation Officer P.W.10 as to the M.O.1, the stone, it is true at that time when the complaint was given at about 11.00 a.m. on 28.11.2005, P.W.1 merely referred to as a stone. On the contrary the Investigation Officer at the time of inquest even before M.O.1 was recovered, had mentioned that it was a "fU';fy;; ". In our considered view it makes no difference as to the stone or "fU';fy;; ", as reference to a stone varies to person to person and even assuming there is a contradiction with regard to the description of M.O.1, such contradiction is only minor and the same cannot be a ground to discard the evidence of P.W.1 and consequently the prosecution case. In this case the prosecution has come forward with overwhelming evidence of P.W.1 coupled with the evidence of P.W.8 the Doctor and the Ex.P.5 seizure Mahazar of M.O.1 as per the admissible portion of the confession statement of the accused through the evidence of P.W.4. 12. As far as the sentence of life imprisonment is concerned, P.W.8, the Doctor who has conducted the Post Mortem found as many as 16 injuries. There are as many of 14 injuries leaving the other two injuries as to the consequence of the death. Though the injury on the left forehead appears to be vital, considering the nature of the other injuries sustained by her all over the body viz., injuries on her back, eyes, lips, breast and other parts of the body, we have no hesitation to hold that the accused has committed the offence only with the intention to commit the murder for which he deserves the punishment awarded by the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 13. For all the above reasons the appeal is dismissed and the conviction and sentence imposed in S.C.No.48 of 2006 by the learned Sessions Judge, Nilgiris at Uthagamandalam dated 27.10.2006 stands confirmed. ggs Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Sessions Judge, Nilgiris at Uthagamandalam. 2. The Superintendent, Central Prison, Coimbatore. 3. The District Collector, Nigiris at Uthagamandalam 4. The Director General of Police, Chennai 5. The Public Prosecutor, High Court, Madras 6. The Inspector of Police, Cherambadi Police Station, Nallakottai Circle. 7.-do- Through The Principal District Judge, Nilgiris at Uthagamandalam 1 cc to Mr.V.Sairam, Advocate, SR.4104 ng (co) dv/20.2. Crl.A.No.330 of 2007 https://hcservices.ecourts.gov.in/hcservices/