Research › Search › Judgment

Madras High Court · body

2003 DIGILAW 1617 (MAD)

Duraisamy v. State

2003-10-10

P.SHANMUGAM, T.V.MASILAMANI

body2003
Judgment :- T.V. MASILAMANI, J. The appellant is the first accused convicted and sentenced under Section 302 I.P.C. by the trial Court. 2. The appellant/first accused along with the second accused were charged for the offences under Sections 302 and 302 r/w.109 I.P.C. and they were charged for the offence murder of the deceased, Pothammal on account of previous enmity, on 9.8.2000 at 6.30 A.M. in the morning and in the course of the same transaction at the instigation of the second accused, the first accused cut her neck from behind and also inflicted cut injuries on her right wrist, right shoulder, right elbow and on her back and thereby she succumbed to the injuries. The trial Court having analysed the evidence found the first accused guilty for the offence of murder under Section 302 I.P.C. and acquitted the second accused. Hence, the first accused has preferred this appeal as against the said conviction and sentence passed by the trial Court. 3. The case of the prosecution may be briefly stated as follows:- (a) The deceased Pothammal is the mother of P.W.1. The accused are residing in the same village in adjacent houses. Since the accused had cut thorny trees from the land belonging to the deceased and P.W.1, there had been misunderstanding between the deceased on the one hand and the accused on the other. While so, on 8.8.2000 there was a dispute with reference to the cutting of the thorny trees by the first accused and the deceased reprimanded him and thereupon the first accused threatened to murder her and she informed her son, P.W.1 about the same who pacified her that he would settle the dispute on the next day. (b) When P.W.1 along with P.W.6 was proceeding to the village on the next day at 5.30 A.M. in a motor cycle to meet the first accused and the deceased, they found the deceased was coming along Mangammal Salai at about 6.30 A.M. carrying the basket and at that time, the first accused cut the deceased on her neck causing fatal injury and after she fell down, he inflicted cut injuries indiscriminately on other parts of her body and on seeing P.Ws.1 and 6, the first accused fled towards the bushes in the tank. When P.Ws.1 and 6 had seen the injured, she was found dead and thereupon P.W.1 came to Villapuram to inform about the occurrence to his brother and went to Koodakovil Police Station and lodged the complaint, Ex.P-1 to P.W.10, Sub Inspector of Police. (c) P.W.10 obtained the complaint from P.W.1 and registered the crime in Cr.No.83/2000 under Sections 302 and 302 r/w 109 I.P.C. and prepared the printed F.I.R., Ex.P-11 and sent Exs.P-1 and P-11 to the Court and the copies thereofto the higher officials. P.W.13, Inspector of Police took up the further investigation and sent for dog squad. Thereafter he went to the scene of occurrence and prepared the observation mahazar, Ex.P-2 in the presence of P.W.5 and another and also recovered M.O.1 blood stained earth, M.O.2 sample earth, M.O.3 basket, M.O.4, a pair of chappal and M.O.5 (series) Measurement vessels in the presence of the same witnesses under cover of mahazar Ex.P-3. He conducted inquest and prepared the inquest report, Ex.P-13 and despatched the dead body of Pothammal through P.W.11, Constable to the Medical Officer. (d) P.W.9, Medical Officer, Thirumangalam Government Hospital conducted post-mortem on the dead body of Pothammal on 10.8.2000 and found the following injuries:- (1) A cut injury extending whole of back of neck 12 cm x 8 cm x 8 cm. Vertebral column is cut into two. Carotid vessels are cut on both sides. spinal cord is cut into two. Only the skin subcutaneous tissue of the anterior part of the neck is intact. (2) Cut injury over the Rt. forearm just 1 inch above the wrist joint 4 cm x 4 cm x 4 cm only the outer aspect of the forearm skin is intact. (3) A cut injury 4 cm x 3 cm x 2 cm over the back over the Rt. scapular region. (4) A cut injury 2 cm x 1 cm x 2 cm over the posterior aspect of Rt. upper arm lower 1/3. He gave the post-mortem report, Ex.P-10 with his opinion that the deceased would appear to have died due to shock and haemorrhage and injury to vital organ, spinal cord. (e) P.W.13 continued his investigation and examined the witnesses and recorded their statements. upper arm lower 1/3. He gave the post-mortem report, Ex.P-10 with his opinion that the deceased would appear to have died due to shock and haemorrhage and injury to vital organ, spinal cord. (e) P.W.13 continued his investigation and examined the witnesses and recorded their statements. On 10.8.2000, he arrested both the accused at 8.00 A.M. and the first accused gave a confession in the presence of P.W.7 and another and in pursuance of the admissible portion, Ex.P-4, he took the police party and the witnesses to his house and took M.Os.6 to 8 blood stained shirt, dhoti and aruval respectively from behind the house under a thorny bush and the same had been recovered by P.W.13 under cover of mahazar, Ex.P-5 in the presence of the same witnesses. He sent the accused as well as the properties to the Court for remand. He examined the witnesses and recorded their statements and also sent a requisition to the Court for sending the material objects for chemical analysis. He has also arranged to take photographs of the scene of occurrence and thereafter, on 11.8.2000 he examined P.W.9, Autopsy Surgeon and recorded his statement and on 12.8.2000, he examined P.Ws.3 and 4 and recorded their statements and after completing the investigation, he laid the final report against the accused 1 and 2 on 23.8.2000 under Sections 302 and 302 r/w.109 I.P.C. 4. On the side of the prosecution, 13 witnesses were examined, 13 documents were marked and 13 material objects were produced in the trial Court. The accused have not examined any witness nor produced any document. The learned Sessions Judge having analysed the evidence and upon hearing both sides found the first accused guilty of the offence under Section 302 I.P.C. and convicted and sentenced him to undergo life imprisonment and acquitted the second accused of the charge under Section 302 r/w. 109 I.P.C. 5. The learned counsel for the appellant/first accused has argued at the outset that the evidence of P.Ws.1 and 6 is not only interested, but also unbelievable for the reason that they had not been present at the place of occurrence that the case was originally based on circumstantial evidence and the prosecution twisted the same as one supported by direct evidence of the eye-witnesses, and that the delay of 16 hours in the F.I.R. reaching the Magistrate's Court is fatal to the prosecution. Further he has urged that the appellant who was 70 years old could not have committed the offence and that therefore he has to be acquitted on the same ground on which the second accused was exonerated from the charge. 6. We have heard the learned Additional Public Prosecutor on the above contentions and perused the recorded evidence both oral and documentary relied on by the prosecution. 7. The evidence of P.W.9, Autopsy Surgeon is that injury No.1 could have been caused by any weapon like aruval and that since the said cut injury as seen from Ex.P-10, post-mortem certificate, severed the vertebral column into two pieces and also carotid vessels leaving anterior part of the neck intact, it would cause instantaneous death for the reason that carotid vessels carry blood to the brain. Therefore, the evidence of P.W.9 coupled with Ex.P-10 would amply disclose that the prosecution has succeeded in establishing that the deceased died on homicidal violence and hence we are of the view that the factum of death of Pothammal due to homicidal violence has been proved beyond doubt. 8. It is not disputed that P.W.1 is the son of the deceased and P.W.6 is the son of his senior paternal aunt. It is in the evidence of P.W.1 that the grand father of the first accused is the brother of his grand-father and since the second accused is the son of the first accused, the close relationship between the family of Pothammal and that of the first accused is not in controversy. 9. According to the evidence of P.W.1, there had been previous misunderstanding between the deceased and the first accused on account of cutting of thorny trees from the tank bed as well in the land of the deceased and on the previous day on 8.8.2000, it appears that the deceased came to the school where P.W.1 was working to complain that when she reprimanded the first accused for cutting the trees from her family land, the first accused threatened to kill her and thereupon, P.W.1 told her that he would come on the next day morning and prevail upon the first accused with reference to the alleged dispute. Hence according to the learned Additional Public Prosecutor, there had been sufficient motive proved on the side of the prosecution to probablise the cause for the occurrence. 10. Hence according to the learned Additional Public Prosecutor, there had been sufficient motive proved on the side of the prosecution to probablise the cause for the occurrence. 10. The cross-examination of P.W.1 on the side of the accused would also indicate that there had been dispute between the deceased on the one hand and the first accused on the other. However,the learned counsel for the accused has urged that the motive alleged in the evidence of P.W.1 cannot be true. But, it is seen from Ex.P-1, complaint which came into existence at the earliest point of time, relevant averments with reference to the motive spoken to by P.W.1 in his evidence have been made. Therefore, we are of the opinion that the prosecution has established the motive also in this case. 11. According to the learned counsel for the accused, the interested testimony of P.Ws.1 and 6 has to be scrutinised with care and caution. Since the relationship between the parties is not in controversy, their evidence have to be analysed in the light of other evidence in this case. Firstly, it is urged by the learned counsel for the accused that there has been delay in lodging the complaint, Ex.P-1 on the part of P.W.1 and that the explanation offered by him is not reasonable. On the contrary, as has been argued by the learned Additional Public Prosecutor and in our opinion rightly, the evidence of P.Ws.1 and 6 that they were perplexed at the place of occurrence as to what action has to be taken in the matter, that therefore they went to the brother of P.W.1 at Villapuram in Madurai Town and that after telling about the occurrence to him and others P.W.1 came to Koodakovil Police Station and lodged the complaint. In view of the circumstances narrated by P.W.1 and P.W.6, we are of the opinion that the delay in giving the complaint has been explained by their evidence in a convincing manner and therefore, we are unable to agree with the contention of the defence counsel in this regard. 12. The next contention of the learned counsel for the accused appears to be with regard to the incorrect timing in the evidence of P.W.11 and P.W.13 regarding the inquest held on the dead body by P.W.13 and the despatch of the dead body for post-mortem. 12. The next contention of the learned counsel for the accused appears to be with regard to the incorrect timing in the evidence of P.W.11 and P.W.13 regarding the inquest held on the dead body by P.W.13 and the despatch of the dead body for post-mortem. On a careful perusal of the records of the case, it is seen that there is no discrepancy as to the time of inquest and that of the handing over of the body of the deceased to P.W.11 for post-mortem and therefore, such minor slip in mentioning the time by P.W.11 will not in any way affect the basis of the prosecution case. Hence, on this aspect also, we are unable to agree with the contention raised by the defence counsel. 13. The totality of the evidence of P.W.1 and P.W.6 reveals clearly that the occurrence had taken place at the place, time and manner as put forth by the prosecution. Their evidence receives corroboration from the evidence of P.W.7 in whose presence M.Os.4 to 8 were recovered by P.W.13, the Investigating Officer on the basis of the confession made by the first accused. The Serologist's report, Ex.P-9 corroborates the evidence of P.W.1 in entirety for the reason that the blood stain found on the dhoti, M.O.7 worn by the first accused herein, is of the same group 'B' found on M.Os.9 and 10 clothes worn by the deceased at the time of the occurrence. Therefore, in view of the ratio in the decision of the Supreme court in RONNY v. STATE OF MAHARASHTRA ( AIR 1998 S.C. 1251 ), we are of the opinion that the Serologist's report, Ex.P-9 lends corroboration to the evidence of P.W.1 and the medical evidence in this case. 14. Similarly, M.O.8, aruval contained human blood and even though the result of the grouping test was inconclusive (vide) Ex.P-9, Serologist's report, the said weapon was recovered on the basis of the confession of the first accused as per the evidence of P.Ws.7 and 13. The evidence of P.W.7, who is an independent witness inspires confidence and hence we hold that the confession of the first accused (vide) Ex.P-4 has been proved to be valid. The evidence of P.W.7, who is an independent witness inspires confidence and hence we hold that the confession of the first accused (vide) Ex.P-4 has been proved to be valid. Therefore, in view of the ratio laid down by the Supreme Court in PAKIRISAMY v. STATE OF TAMIL NADU ( AIR 1998 S.C. 107 ), we affirm the finding of the trial Court in this respect. It is therefore clear that the first accused has been connected with the commission of the offence by conclusive proof adduced by the prosecution in this case. Hence we find that the evidence of P.W.1 corroborated by medical evidence and circumstances is cogent and convincing. For the reasons stated above, we are of the opinion that the first accused was rightly convicted and sentenced by the trial Court and therefore, the appeal is liable to be dismissed. 15. Thus, the appeal is dismissed confirming the conviction and sentence imposed by the trial Court. Consequently, Crl.M.P.No.8917 of 2003 stands dismissed.