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2003 DIGILAW 143 (MAD)

Jayapal v. State by:Inspector of Police

2003-01-31

A.K.RAJAN, M.KARPAGAVINAYAGAM

body2003
Judgment :- M.KARPAGAVINAYAGAM.J, ) Jayapal, the accused/appellant was convicted for the offence under Section 302 I.P.C. for having caused the death of one Rajammal by means of a stone. Hence, this appeal. 2. The short facts, which led to the conviction are as follows:- (a) The deceased Rajammal is the wife of P.W.1 Chellappa Konar. Vaiyapuri Konar is the brother of P.W.1 Chellappa Konar. Jayapal, the accused, is his son. There was enmity between the two families for a long time. They were having adjacent lands. In between their lands, there was a common well used by both of them. There was a quarrel between the two families in regard to drawing of water for irrigating their respective lands, as a result of which, a decision was taken by the Panchayat on the basis of which the parties agreed to draw water two days in a week. Accordingly, the family of the accused was allowed to draw water on all Wednesdays and Thursdays. But violating the decision of the Panchayat, the family of the accused drew water on Friday also. Due to this, there was a quarrel between the deceased Rajammal and the mother of the accused. (b) On coming to know that the deceased picked up quarrel with his mother, on 13.03.1998 evening, the accused came to the house of the deceased Rajamal and threatened her that he would do away with her as she was always quarrelling with his family and went away. The deceased Rajammal complained about this incident of intimidation to her husband P.W.1 Chellappa Konar, when he came back home. P.W.1 pacified her stating that they would settle the matter in the morning. (c) On 14.03.1998 at about 10.30 a.m., the deceased Rajammal was taking rest by lying down in the front yard of her house. At that time, the accused came there and stood near the deceased and threw a stone on her head. (d) P.W.1 after finishing his field work, was coming back to his house. At that time, P.W.3 Prabhakaran, the elder son of the deceased Rajammal was playing along with his younger brother nearby. This occurrence was witnessed by both P.Ws.1 and 3, who cried aloud. (e) On hearing their shouting, P.W.2 Arumugham came there and arranged a taxi for taking the victim to the hospital. Thereupon, the victim was taken to Government Hospital, Dindigul. This occurrence was witnessed by both P.Ws.1 and 3, who cried aloud. (e) On hearing their shouting, P.W.2 Arumugham came there and arranged a taxi for taking the victim to the hospital. Thereupon, the victim was taken to Government Hospital, Dindigul. The Doctor, who attended the deceased, declared her dead. (f) On intimation from the Hospital, P.W.10 Rajendran, Sub Inspector of Police came to the hospital and received a complaint Ex.P.1 from P.W.1 Chellappa Konar. Ex.P.7 is the Printed First Information Report. A case was registered in Crime No.26 of 1998 under Section 302 I.P.C. (g) P.W.11 Chinnasamy, the Inspector of Police, on receipt of the copy of the Express Report on 14.03.1998 at 5.00 p.m., came to the spot and prepared observation mahazar Ex.P.2 and rough sketch Ex.P.8. He also recovered M.O.1 stone, M.O.2 gunny bag, M.O.3 blood stained earth and M.O.4 sample earth. Thereafter, P.W.11 along with P.W.4 Subramani, Village Administrative Officer and others came to the bus stop and arrested the accused. The accused was then brought to the Police Station, where he identified M.O.1 stone. P.W.11 went to the hospital and conducted inquest between 10.00 p.m. and 11.30 p.m. in the presence of witnesses. Ex.P.9 is the inquest report. He sent the body of the deceased to Doctor for conducting post mortem. (h) P.W.6 Dr.Bharathi, on receipt of requisition, conducted post-mortem on 15.03.1998 at 2.30 p.m. and gave opinion in the post mortem certificate Ex.P.6 that the deceased would appear to have died of shock and haemorrhage due to head injuries. (i) P.W.11 requested the Judicial Magistrate to send the material objects for chemical examination. Ex.P.12 is the chemical analysis report and Ex.P.13 is the serologist's report. After finishing the investigation, P.W.11 filed the charge sheet against the accused for the offence under Section 302 I.P.C. 3. During the course of trial, P.Ws.1 to 11 were examined, Exs.P.1 to P.13 were filed and M.Os.1 to 5 were marked. 4. When the accused was questioned under Section 313 Cr.P.C., he simply denied his complicity in the crime. 5. The trial Court ultimately found the accused guilty of the offence under Section 302 I.P.C. and sentenced him to undergo Life Imprisonment. 6. While assailing the judgment of conviction in the appeal filed by the accused, Mr. 4. When the accused was questioned under Section 313 Cr.P.C., he simply denied his complicity in the crime. 5. The trial Court ultimately found the accused guilty of the offence under Section 302 I.P.C. and sentenced him to undergo Life Imprisonment. 6. While assailing the judgment of conviction in the appeal filed by the accused, Mr. S.Senthilnathan, learned counsel appearing for the appellant, while taking us through the entire evidence, would contend that the evidence of P.Ws.1 and 3 cannot be believed in view of the contradiction with reference to the motive as well as in regard to the words uttered by the accused, while throwing the stone on the head of the deceased. 7. He would further submit that the arrest of the accused is doubtful, since there is contradictory version as regards to the same in the evidence of P.W.4 Village Administration Officer and P.W.11, the investigation officer. It is also submitted that the stone said to have been used by the accused, has not been produced before the Court and origin of the occurrence has not been explained by the prosecution, as to how the quarrel started. He would also submit that the motive for the occurrence has not been spoken to by P.Ws.1 and 3 in their evidence and as such, the prosecution has not established the case beyond reasonable doubt. 8. Alternatively, the learned counsel for the appellant would submit that in any event, the offence would not fall under Section 302 I.P.C., since the act of the accused cannot be considered to be a planned murder, especially when the accused used only stone, which is not a dangerous weapon. In brief, the learned counsel for the appellant would request us to consider the case for imposing conviction under lesser offence. 9. In reply to the said submissions, Mr. E.Raja, learned Additional Public Prosecutor would point out the relevant portions of the evidence and contend that the materials available on record, would establish that the accused only committed the act of causing the death of the deceased. The very fact that the accused used a big and weighty stone and threw it on the head of the deceased, which resulted in her death, would clearly indicate that the act committed by the accused would fall only under Section 302 I.P.C. and not under lesser offence. 10. The very fact that the accused used a big and weighty stone and threw it on the head of the deceased, which resulted in her death, would clearly indicate that the act committed by the accused would fall only under Section 302 I.P.C. and not under lesser offence. 10. We have given our thoughtful consideration to the rival contentions urged by both the counsel for parties. 11. Originally, there were three eye witnesses. As correctly pointed out by the learned counsel for the appellant, P.W.2 Armugham turned hostile, as he did not support the prosecution case. However, it is noticed that P.W.2 would state in his chief-examination that immediately after the occurrence, he was informed by P.W.3 Prabhakaran, the son of the deceased that the accused only threw the stone on the head of the deceased. It is also admitted by P.W.2 that he only had arranged a taxi for the victim to be taken to the hospital. In the light of the same, we will now consider the evidence of P.Ws.1 and 3. 12. It is contended that motive has not been established. According to the prosecution, there was a quarrel between these two families over sharing of water from the common well. This is not disputed. It is clearly mentioned in Ex.P.1 complaint that as per the decision taken by the Panchayadars, it was agreed that the parties should draw water for two days in a week and accordingly, the family of the accused was allowed to take water on all Wednesdays and Thursdays on turn basis. But contrary to that, the accused family continued to draw water on Fridays also and this resulted in a quarrel between the two families. 13. It is seen from Ex.P.1 that the accused came to the house of the deceased on 13.03.1998 at about 6.00 p.m. and threatened the deceased that he would do away with her, as she was always quarrelling with his family. This incident was informed to P.W.1 by the deceased on the same night. As correctly pointed out by the learned counsel for the appellant, though this incident has been mentioned in Ex.P.1, P.W.1 did not choose to refer to the same in his chief examination. This incident was informed to P.W.1 by the deceased on the same night. As correctly pointed out by the learned counsel for the appellant, though this incident has been mentioned in Ex.P.1, P.W.1 did not choose to refer to the same in his chief examination. But, we may not give much importance to the said omission, in view of the fact that P.W.1 himself would state in his chief examination that there were frequent quarrels between the families and due to the said quarrel, panchayat was also held. Under those circumstances, it cannot be said that motive has not been established. 14. To prove the main occurrence, the prosecution has examined P.Ws.1 and 3. P.W.1 is the husband of the deceased and P.W.3 is the son of the deceased. According to P.W.1, on the date of occurrence, he went to the field and after finishing his work, he was coming back home. According to P.W.3, at about 10.30 a.m., he was playing with his younger brother in front of his house. 15. It is the case of the prosecution that at about 10.30 a.m., the deceased was sleeping in the front yard of the house. It is submitted by the learned counsel for the appellant that it is doubtful for a house wife to sleep at 10.30 a.m. in the front yard of the house. But, it has been elicited from the cross examination of P.W.1 that the deceased and P.W.1 went to the Panchayat Board Office previous night and watched T.V. midnight i.e. 2.00 a.m. 16. It is also the case of P.W.1 that after watching T.V., he straight away went to the field and came back home at 10.30 a.m. In the meantime, the deceased came to her house and after finishing her household work, she took some rest. As a matter of fact, the post-mortem Doctor P.W.6 found 250 grams of partially digested food in the body of the deceased. So the deceased must have taken food prior to her death. Thus, it would be clear that after returning back from the Panchayat Board Office at 2.00 a.m., she finished her household works and she was sleeping in front of her house. 17. Much was said about the words uttered by the accused, while throwing the stone on the head of the deceased. Thus, it would be clear that after returning back from the Panchayat Board Office at 2.00 a.m., she finished her household works and she was sleeping in front of her house. 17. Much was said about the words uttered by the accused, while throwing the stone on the head of the deceased. It is true that P.W.1 did not state anything about the words uttered by the accused, while P.W.3 would refer to the same. But, on going through the evidence of P.W.3, it is clear that his evidence is so natural, and he must have heard the words as he was playing with his younger brother in a nearby place, where the deceased was sleeping. On the other hand, according to P.W.1, he was coming at the distance of 300 feet from the place of occurrence. So, it can not be stated that P.W.1 would have heard the words uttered by the accused, while throwing the stone on the head of the deceased. 18. It is pointed out that P.W.1 was not able to identify M.O.1 stone. As a matter of fact, he admitted that M.O.1 was not the weapon, which was used for committing the offence. As correctly pointed out by the learned Additional Public Prosecutor that P.w.3 identified M.O.1 stone stating that the accused threw M.O.1 stone on the head of the deceased. Observation mahazar Ex.P.2 would also indicate that the stone M.O.1 with blood stain was found in the scene of occurrence and the same was recovered. It is also noticed from Ex.P.2 observation mahazar that no other stone was found in the scene of occurrence. Though P.W.1 did not identify M.O.1 stone, he stated that " The stone used by the accused was found in the scene" . Therefore, even in the absence of identification of M.O.1 stone by P.W.1 in the Court, from the evidence of P.W.3 the other eye witness and from the evidence of P.W.4 the mahazar witness for the recovery of stone M.O.1 and also from Ex.P.3 seizure Mahazar, it can be safely concluded that the accused used M.O.1 stone and caused injury on the head of the deceased. 19. Lastly, it was contended that the offence would not fall under Section 302 I.P.C., but would attract only a lesser offence, as the occurrence had taken place out of a sudden quarrel. We find no substance in this contention. 19. Lastly, it was contended that the offence would not fall under Section 302 I.P.C., but would attract only a lesser offence, as the occurrence had taken place out of a sudden quarrel. We find no substance in this contention. It is not the case of the prosecution that the occurrence had taken place after a wordy quarrel ensued into between the parties. It is the specific case of the prosecution that only on earlier day, there was a quarrel between the deceased and the mother of the accused and in the evening, the accused came to the house of the deceased and threatened her that he would kill her next day. It has also been specifically mentioned in Ex.P.1. 20. Furthermore, Ex.P.3 seizure mahazar and Ex.P.12 chemical analysis report would clearly indicate that the weapon is a big and a weighty one, weighing about 7 kilos and 100 grams. The evidence of P.Ws.1 and 3 is that the accused stood near the deceased and threw the stone on her head, as a result of which she sustained injuries. The Doctor P.W.6 would state that when a stone was thrown on the head while the deceased was sleeping on the floor, she would have sustained these injuries. The Doctor has given an opinion that the deceased would appear to have died of shock and Haemorrhage due to head injury. He also found fracture in the middle of right parietal bone, depressed fracture in the left side of frontal bone, fracture in the left parietal bone, fracture in the left temporal bone and also fracture in the base of, skill middle cranial tossa. 21. From all the above facts, it is clear that the accused used M.O.1 weighty stone and threw the same on the head of the deceased with intention to cause her death. In these circumstances, we are of the view that the offence would fall only under Section 302 I.P.C. and the same has been proved by the prosecution beyond reasonable doubt. 22. In the result, the conviction and sentence imposed by the trial Court upon the accused/appellant are confirmed and consequently, the criminal appeal is dismissed.