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2004 DIGILAW 1605 (MAD)

Nachimuthu v. State by Inspector of Police

2004-11-29

N.V.BALASUBRAMANIAN, PRABHA SRIDEVAN

body2004
Judgment :- N.V.Balasubramanian, J. The appeal is directed against the judgment of learned I Additional Sessions Judge-cum-Chief Judicial Magistrate, Erode in S.C.No.87 of 1998 dated 9.10.1998 convicting and sentencing the accused Nachimuthu for life imprisonment under section 302 I.P.C. and two years rigorous imprisonment under section 324 I.P.C. and ordering the sentences to run concurrently. The accused is the appellant. 2. The Inspector of Police, Chennimalai Police Station has laid a charge sheet against the accused Nachimuthu alleging that the accused Nachimuthu had frequent quarrels with his wife Ponnal as a result of which Ponnal was living separately along with her son Krishnamoorthi in a house situate near her brother Nachimuthu's residence at canal bank in Ammankoil Puthur and when the deceased Nachimuthu refused to accede to the request of the accused to send his wife Ponnal with him, the accused, on 25.5.1997 at about 2.00 p.m. went to the house of the deceased Nachimuthu at canal bank in Ammankoil Puthur and caused injuries to Prakash, the son of the deceased on his back with knife and on hearing the noise, when the deceased came out of the house, the accused, with the intention to murder the deceased Nachimuthu, stabbed him with the knife on his chest as a result of which the deceased Nachimuthu died and thereby the accused committed the offences punishable under sections 302 and 324 I.P.C. 3. To prove the charges, the prosecution has examined 15 witnesses - P.Ws.1 to 15, marked 24 documents - Exs.P-1 to P-24, besides M.Os.1 to 14. The prosecution case, as deduced from the evidence, is as follows:- (a) P.W.1 Kamala is the widow of the deceased Nachimuthu. P.W.2 is her son. P.W.4 Ponnathal (Ponnal) is the sister of the deceased Nachimuthu and wife of the accused Nachimuthu. P.W.1 Kamala along with her family was residing at canal bank of Ammankoil village. The accused Nachimuthu belongs to Thottiapatti. Even from the marriage, there were frequent quarrels between the accused Nachimuthu and his wife P.W.4 Ponnal and about six months prior to the occurrence, due to the quarrel with the accused, P.W.4 came to P.W.1's house along with her son Krishnamoorthi and after ten days, she was pacified and sent back to her husband. Even from the marriage, there were frequent quarrels between the accused Nachimuthu and his wife P.W.4 Ponnal and about six months prior to the occurrence, due to the quarrel with the accused, P.W.4 came to P.W.1's house along with her son Krishnamoorthi and after ten days, she was pacified and sent back to her husband. About 2 or 3 months later, quarrelling with the accused P.W.4 came to P.W.1's house with her son Krishnamoorthi and when the accused asked P.W.4 to come with him, she refused. The accused told that only the deceased was preventing P.W.4 from living with him. P.W.3 Senthilkumar and one Subramaniam assuaged the accused. Then, P.W.4 left the house of P.W.1 saying that her further stay would cause problems, and lived separately with her son Krishnamoorthi by putting a house in poramboke land in Ammankoil Puthur itself and she was doing weaving work. (b) On the date of occurrence, namely, 25.5.1997 at about 10 a.m. the accused Nachimuthu went to the shop of P.W.5 and bought biscuits and other items and saying that he would be visiting his wife, he left the shop of P.W.5. At that time, the accused also told P.W.5 that he would ask his wife to come with him and if she refused to come, she would face the consequences. (c) On the same date, at about 2 p.m., the deceased was taking rest inside his house, when P.W.1, her son P.W.2 Prakash and her daughter Nithya were sitting in the veranda of the house and P.W.3 Senthilkumar, one Subramaniam and P.W.4's son Krishnamoorthi were watching T.V. programmes in Panchayat Union Television set which was housed in a nearby place. At that time, the accused Nachimuthu visited the house of P.W.1 and gave sacred ash, cake, etc. by stating that he was coming from a temple. P.W.1 offered the accused to take lunch for which the accused agreed. Then, P.W.1 went inside the house to take food for the accused. Meanwhile, the accused asked P.W.2 Prakash the whereabouts of his father Nachimuthu for which P.W.2 replied that he did not know. Saying that the deceased was preventing P.W.4 from living with him, the accused stabbed P.W.2 thrice on his back with M.O.1 knife by catching hold of the hand of P.W.2. When P.W.2 defended the attack, he sustained injury on his right thumb. Saying that the deceased was preventing P.W.4 from living with him, the accused stabbed P.W.2 thrice on his back with M.O.1 knife by catching hold of the hand of P.W.2. When P.W.2 defended the attack, he sustained injury on his right thumb. P.W.1 who came with food, on seeing this, raised a alarm. On hearing the noise, P.W.3 Senthilkumar, Subramaniam and Krishnamoorthi came there. The deceased Nachimuthu, who was taking rest inside the house, also came there. The accused stabbed the deceased Nachimuthu thrice with the same M.O.1 knife on his chest and the deceased fainted and fell down. The accused fled the scene with the knife M.O.1. P.W.1 along with P.W.3 Senthilkumar, Subramaniam and Krishnamoorthi arranged a car and took the deceased Nachimuthu and P.W.2 to the Government Hospital, Erode at about 3.45 p.m. where the deceased was declared brought dead. P.W.4, on hearing the news, visited the hospital. (d) P.W.15 was the Inspector of Police, Chennimalai Police Station at the time of occurrence. On 25.5.1997 at about 5 p.m. he received wireless message from the Out-post Police Station of the Government Hospital, Erode about the death of Nachimuthu and went to the Hospital at about 6.00 p.m. and received the intimations Exs.P-19 and P-20 regarding the death of Nachimuthu and the injury on P.W.2. In the hospital from P.W.1, the Inspector of Police recorded a complaint (Ex.P-1) which was read over to her and found to be correct. P.W.15 Inspector went to the Chennimalai Police Station at about 8.00 p.m., registered a case under sections 324 and 302 I.P.C. in crime No.235 of 1997 and prepared Ex.P-21 Express F.I.R. P.W.15 Inspector forwarded the Express F.I.R. through P.W.11 Grade-I Constable, Sivabala Shanmugam who handed over the same to the Judicial Magistrate No.2, Erode on 26.5.1997 at about 5.00 a.m. since the Judicial Magistrate, Perunthurai went on leave. (e) In the meantime, on 25.5.1997 at about 3.30 p.m. P.W.8 doctor attached to the Government Hospital, Erode examined P.W.2 Prakash who informed P.W.8 that he was attacked by a known person with knife. P.W.8 found the following injuries on P.W.2: 1. Incised wound 3 x 2 cm. (depth not assessed) in the middle of the back of the chest. 2. Incised wound 2 x 1 cm. in the upper inter scapular area (depth not assessed). 3. Incised wound 1 x « x « cm. in the right scapular area. 4. P.W.8 found the following injuries on P.W.2: 1. Incised wound 3 x 2 cm. (depth not assessed) in the middle of the back of the chest. 2. Incised wound 2 x 1 cm. in the upper inter scapular area (depth not assessed). 3. Incised wound 1 x « x « cm. in the right scapular area. 4. Incised wound 1 x ¬ x ¬ cm. on the right thumb. After X-rays was taken, P.W.8 opined that the above injuries are simple in nature. He issued the wound certificate, Ex.P-10. P.W.8 was of the opinion that the injuries could have been caused by M.O.1 knife in the manner and time as alleged. (f) On 25.5.1997 at about 5.15 p.m., on receipt of Ex.P-2 requisition from the Government Hospital, Erode to record dying declaration, P.W.6, Judicial Magistrate No.2, Erode went to the Government Hospital, Erode and in between 5 p.m. and 5.45 p.m., he recorded Ex.P-3 dying declaration from P.W.2 Prakash, who was treated as inpatient in the hospital. P.W.6 read over the statement made in Ex.P-3 to P.W.2 who admitted the same to be correct and signed. The Doctor, who was present, found that P.W.2 was conscious at the time of recording dying declaration. (g) On the same date at about 10.30 p.m. P.W.15 Inspector of Police went to the scene of occurrence and prepared Ex.P-11 observation mahazar in the presence of P.W.9 Murugesan and one Ramasamy. P.W.15 also drew the rough sketch, Ex.P-22. P.W.15 caused the scene of occurrence to be photographed through P.W.13. M.O.13 series are the photographs and negatives. At about 11.00 p.m. P.W.15 seized M.O.3 bloodstained earth, M.O.4 sample earth, M.O.6 purse containing (M.O.7) one ten rupee note, M.O.14 photo of the son of the accused and M.O.15 pocket note from the scene of occurrence under Ex.P-12 mahazar in the presence of P.W.9 and Ramasamy. Thereafter he went to the Government Hospital, Erode and on 26.5.1997 from 1 am. to 4 am. he conducted the inquest over the dead body of the deceased Nachimuthu in the presence of witnesses and prepared Ex.P-23 inquest report and recorded the statements of the witnesses. He handed over the dead body to P.W.12 along with Ex.P-17 requisition for post-mortem examination. to 4 am. he conducted the inquest over the dead body of the deceased Nachimuthu in the presence of witnesses and prepared Ex.P-23 inquest report and recorded the statements of the witnesses. He handed over the dead body to P.W.12 along with Ex.P-17 requisition for post-mortem examination. (h) P.W.14 doctor attached to the Government Hospital, Erode on 26.5.1997 at about 8.35 a.m. conducted the post-mortem examination on the dead body of the deceased Nachimuthu and found the following injuries: 1. Stab wound 2 cm. below the outer end of clavicle and 8 cm. medial to outer border of left shoulder ( 4 x 2 x 12cm.) 2. Stab would 2 x 1 x 3 cm., 2 cm. medial to injury (1). 3. Stab would 1 x 0.5 x 0.5 cm., 7 cm. below the medial aspect of right clavicle. In all wounds, edges were clean; blood clots were present and all wounds were vertically placed. P.W.14 opined that the deceased would appear to have died of shock and haemorrhage due to the injury to his left subclavian vein about 12 hours prior to autopsy. He has also stated that the injuries could have been caused by M.O.1 knife on 25.5.1997 at about 2 p.m. P.W.14 issued Ex.P-18 post-mortem certificate. (i) After post-mortem examination, P.W.12 seized M.O.10 lungi M.O.11 underwear and M.O.12 waist cord from the dead body and handed over the same to the Inspector of Police P.W.15 under Ex.P-16. P.W.15 Inspector of Police on 26.5.1997 at about 5.30 a.m. examined P.W.2 Prakash and recorded his statement and seized M.O.2 trouser produced by P.W.2 in the presence of P.W.9 Murugesan and Ramasamy under Ex.P-24 mahazar. (j) P.W.10 is the Village Administrative Officer of Murugathozhuvu village. On 26.5.1997 at about 9.00 a.m. when he was in his Office at Ammapalayam along with one Ponnappan, the accused came there and stated that due to the quarrel between himself and his wife, he stabbed his brother-in-law Nachimuthu to death with M.O.1 knife as the deceased was preventing his wife from living with him and when P.W.2 intervened, he also stabbed P.W.2. The accused handed over the knife (M.O.1) to P.W.10. P.W.10 recorded Ex.P-13 statement and got the signature of the accused. P.W.10 made an endorsement on Ex.P-13, took the accused along with Ex.P-13 statement to the Police Station and produced the accused. The accused handed over the knife (M.O.1) to P.W.10. P.W.10 recorded Ex.P-13 statement and got the signature of the accused. P.W.10 made an endorsement on Ex.P-13, took the accused along with Ex.P-13 statement to the Police Station and produced the accused. P.W.10 also handed over M.O.1 knife kept by the accused to the police. (k) P.W.15 Inspector of Police arrested the accused produced by P.W.10. P.W.15 seized M.O.1 knife produced by the accused under Ex.P-14 mahazar in the presence of P.W.10 and Ponnappan. P.W.15 also seized M.O.8 shirt and M.O.9 pant under Ex.P-15 mahazar in the presence of the same witnesses and sent the accused for judicial custody. Then, P.W.15 gave Ex.P-4 requisition to the Court to forward the material objects for chemical examination. Accordingly, P.W.7 forwarded the material objects for Chemical Examination along with Ex.P-5 letter. Exs.P-6 and P-7 are Chemical Examiner's reports and Exs.P-8 and P-9 are the Serologist's reports. P.W.15 Inspector of Police examined the doctor and other witnesses and after completing the investigation, laid the charge sheet under sections 324 and 302 I.P.C. against the accused. 4. When the accused was questioned under section 313 Cr.P.C. with reference to the incriminating evidence found against him, he denied the same. The accused has not produced any evidence, oral or documentary. 5. Learned trial Judge, on appreciation of evidence, found the accused guilty under sections 302 and 324 I.P.C. and convicted and sentenced him as mentioned above. It is against the judgment of conviction and sentence, the present appeal has been preferred by the accused. 6. The point for consideration in the appeal is whether the prosecution has brought home the guilt of the accused beyond all reasonable doubts and learned trial judge was correct in convicting and sentencing the accused for the offences charged. 7. Learned counsel for the appellant submitted that P.W.1 was not an eye-witness at all. He referred to the evidence of P.W.1, P.W.2 and P.W.15, investigating officer and submitted that in the cross-examination P.W.15 has stated that as soon as P.W.2 was injured, he became faint and when he opened his eyes he was in the Erode Hospital and then only, he came to know about the death of his father Nachimuthu. He referred to the evidence of P.W.1, P.W.2 and P.W.15, investigating officer and submitted that in the cross-examination P.W.15 has stated that as soon as P.W.2 was injured, he became faint and when he opened his eyes he was in the Erode Hospital and then only, he came to know about the death of his father Nachimuthu. Learned counsel also referred to the evidence of P.W.1 wherein she has stated that she saw the first incident when the accused attacked P.W.2 and the second incident when the accused attacked her husband in the presence of P.W.3 Senthilkumar, Subramaniam and Krishnamoorthi and submitted that the fact that both Subramaniam and Krishnamoorthi were not examined would show that both of them were not present at the time of incident. He submitted that a reading of the evidence of P.W.1 shows that she is an unnatural witness and she was not an eye-witness and her evidence should be rejected as a whole. 8. We are unable to accept the submission of the learned counsel for the appellant. The presence of P.W.1 was spoken to by P.W.2. P.W.2 has stated that his mother (P.W.1) was present. P.W.3 is an independent witness who is stated to have watched Television programme along with Subramaniam and Krishnamoorthi at the time of occurrence and he has deposed that after hearing the noise of P.Ws.1 and 2 from inside the house, he along with Subramaniam and Krishnamoorthi rushed to the house and saw the second incident of the accused stabbing the deceased. 9. Learned counsel for the appellant also referred to the dying declaration of P.W.2 and submitted that in the dying declaration, the presence of his mother P.W.1 at the time of occurrence was not mentioned. Though the said declaration is not a statement within the meaning of section 32 of the Evidence Act, 1872, it can be regarded as a statement falling under section 164 of the Code of Criminal Procedure and the statement can be used under section 157 of the Evidence Act for the purpose of corroboration and under section 155 of the Evidence Act for the purpose of contradiction. The above principle is well-settled by the decision of the Supreme Court in STATE OF U.P. v. VEER SINGH (2004 SCC (Cri) 1672) wherein the Supreme Court held as under:- " It is trite law that when the maker of a purported dying declaration survives, the same is not statement under section 32 of the Indian Evidence Act, 1872 but is a statement in terms of section 164 of the Code. It can be used under section 157 of the Evidence Act for the purpose of corroboration and under section 155 for the purpose of contradiction. This position was highlighted in Ramprasad v. State of Maharashtra (1999) 5 SCC 30 : 1999 SCC (Cri) 651), Sunil Kumar v. State of M.P. (1997) 10 SCC 570 : 1997 SCC (Cri) 879: JT (1997) 2 SC 1 and Gentela Vijayavardhan Rao v. State of A.P. (1996) 6 SCC 241 : 1996 SCC (Cri) 1290: (1996) 6 Supreme 356 )." 10. A reading of the statement of P.W.2 in Ex.P-3 would show that the dying declaration was taken at about 5.30 p.m. on 25.8.1997 wherein P.W.2 has stated that the incident took place at 2.00 p.m. when his uncle (accused) came to his house with some food parcels and he (accused) stabbed him with knife Though he has not stated about the presence of his mother in Ex.P-3, at that time he was in a dangerous situation and he was a boy of 10 years old and therefore P.W.2 might not have been in a position to recollect the presence of his mother when he gave Ex.P-3 statement before the Judicial Magistrate No.2, Erode and the omission to mention the name of P.W.1 in Ex.P-3 declaration is not material. On the other hand, in his evidence, P.W.2 has clearly stated that his mother P.W.1 was present along with his sister Nithya who was not examined. The evidence of P.W.2 is also corroborated in material particulars by the evidence of P.W.3 who was present and watching Television programme near the place of incident. P.W.3 has spoken about the presence of P.W.1 and also the incident of stabbing of the deceased by the accused. Hence, we are unable to accept the submission of learned counsel for the appellant that P.W.1 was not present at the time of occurrence in the scene. P.W.3 has spoken about the presence of P.W.1 and also the incident of stabbing of the deceased by the accused. Hence, we are unable to accept the submission of learned counsel for the appellant that P.W.1 was not present at the time of occurrence in the scene. We have gone through the evidence of P.W.1 carefully and find that her evidence is reliable and she has stood the test of cross-examination. She has stated that when the accused was stabbing her son P.W.2 other persons came. She has also deposed about the motive for the commission of the crime. She has categorically stated that it is incorrect to state that when the accused was stabbing the deceased, P.W.2 himself intervened and got injured. 11. Learned counsel for the appellant referred to the evidence of P.W.2 that he saw the incident of the accused stabbing the deceased and submitted that before the investigating officer P.W.15 P.W.2 made a statement to the effect that he became faint after he was stabbed and when he opened his eyes, he was in the hospital and if that is the position, his evidence that he saw the incident of the accused stabbing the deceased is not correct. The evidence of P.W.2 clearly shows that the accused stabbed him thrice with the knife, M.O.1. P.W.2 is an injured witness and he was aged 10, studying sixth standard at the time of occurrence and the learned Sessions Judge was satisfied that P.W.2 was competent to depose. He is an eye-witness to the incident of the accused stabbing the deceased. Though his statement before the police is relevant, a reading of his evidence before the Court clearly discloses that he saw the incident and he also spoke about the presence of his mother, P.W.1 and the presence of P.W.3, Krishnamoorthi and Subramaniam. Moreover, the presence of the accused in the scene of occurrence was spoken to by P.W.3 who came to the scene after hearing the shouting of P.Ws.1 and 2. P.W.5 is also an independent witness who has deposed that the accused purchased biscuits and other articles which were handed over to P.W.1 later. we find that learned Sessions Judge has seen the demeanour of the witnesses and accepted the evidence of P.Ws.1 to 3 of whom P.Ws.1 and 2 were eye-witnesses. P.W.5 is also an independent witness who has deposed that the accused purchased biscuits and other articles which were handed over to P.W.1 later. we find that learned Sessions Judge has seen the demeanour of the witnesses and accepted the evidence of P.Ws.1 to 3 of whom P.Ws.1 and 2 were eye-witnesses. In so far as P.W.1 is concerned, though she is the widow of the deceased, she has spoken about the incident cogently and she is also an eye-witness. P.W.3 was present near the place of incident and he rushed to the scene after hearing the noise of P.Ws.1 and 2. Hence, we are unable to accept the submission of learned counsel for the appellant that P.W.2 could not have seen the incident as he became faint after he was attacked. Though he was injured, there is nothing to show that he was not in a position to witness the incident of the accused stabbing the deceased. 12. Another submission of learned counsel for the appellant is that the doctor who conducted the post-mortem examination (P.W.14) has stated that the depth of the first wound was 12 cm., but the length of the knife M.O.1 is only 9.5 cm. He referred to the post-mortem certificate, Ex.P-18. According to him, there is discrepancy in the medical evidence as the knife which is stated to have been used by the accused could not have pierced into a depth of 12 cm. We have gone through the evidence of P.W.14 doctor and the evidence of P.W.10, Village Administrative Officer. P.W.10 in his deposition has stated that the accused voluntarily came and produced before him the knife M.O.1. It is also his evidence that the accused informed him that he (accused) stabbed the deceased and when P.W.2 intervened, he also stabbed P.W.2. P.W.10 has not only produced M.O.1 knife and other articles, but he also stated that only after the surrender of the accused, his statement Ex.P-13 was obtained and the knife and other articles were seized in the presence of independent witnesses. 13. P.W.10 has not only produced M.O.1 knife and other articles, but he also stated that only after the surrender of the accused, his statement Ex.P-13 was obtained and the knife and other articles were seized in the presence of independent witnesses. 13. We are of the view, there is not much force in the argument of learned counsel for the appellant with regard to the length of knife as the post-mortem certificate clearly shows that there was a stab wound two centimetre below the outer end of clavicle and eight centimetre medial to outer border of left shoulder measuring 4 x 2 x 12 cm. It is also stated in the post-mortem certificate that the injury No.1 has pierced through the left sub clavian vein and upper lobe of left lung for 5 centimetre. In the post-mortem certificate the doctor opined that the deceased would appear to have died due to the injury to his left sub-clavian vein and shock. We are of the view that it is possible that the depth of the wound would be more than the length of the knife due to the deep piercing of the knife M.O.1 in the tender portion of the lung area and the possibility of the slight caving in of the lung portion due to the fierce piercing of the lung portion by the sharp knife used and thereby causing deeper injury than the length of the knife pierced cannot be ruled out. Hence, the submission of learned counsel for the appellant that the depth of the first wound is more than the length of the knife and hence, the weapon M.O.1 could not have been used in the incident is not acceptable as M.O.1 knife was surrendered before P.W.10 Village Administrative Officer and the post-mortem certificate also shows that the said injury could have been caused only with M.O.1 knife. 14. As far as motive of the crime is concerned, P.W.1 has stated that the accused had the impression that the deceased was responsible for his wife (sister of the deceased) living away from him. We are of the view, the existence of motive is not relevant when the evidence produced by the prosecution, viz., P.Ws.1, 2 and 3 are acceptable who have spoken about the occurrence cogently. We are of the view, the existence of motive is not relevant when the evidence produced by the prosecution, viz., P.Ws.1, 2 and 3 are acceptable who have spoken about the occurrence cogently. P.W.4, sister of the deceased and wife of the accused, though was not present, has deposed that she was living away from the accused. As far as P.W.5 is concerned, he has stated that the accused, after purchasing articles in his shop, told him that he (accused) intended to met his wife and if she refused to come with him, she would face the consequences. Enraged accused visited the house of the deceased which was spoken to by P.Ws.1 to 3. As far as the first incident of stabbing P.W.2 is concerned, it has been spoken to by P.W.2 himself. As far as the fatal injuries caused to the deceased are concerned, all the abovesaid three witnesses have spoken about the same and their presence is also established and the evidence of each one of the witnesses is corroborated by the other witnesses. We find that P.Ws.1 to 3 are reliable witnesses and the presence of P.W.1 and P.W.2 in the house of the deceased is natural as they are residents in the house. Further, it is the evidence of P.W.10 that the accused had voluntarily surrendered the knife M.O.1 before him and he, in turn, handed over the same to the police which is also acceptable. It is also seen from the evidence of P.W.10 that the accused himself has voluntarily given the statement that he inflicted the injuries on the deceased as well as P.W.2. On appreciation of the entire evidence on record, we hold that the prosecution has established that the accused has committed the crime causing fatal injuries to the deceased leading to his death and the accused has also inflicted injuries on P.W.2. We also hold that the prosecution has established the guilt of the accused beyond reasonable doubt and we find that the learned Sessions Judge was right in convicting and sentencing the accused for the offences under sections 302 and 324 I.P.C. and we uphold the judgment of conviction and sentence imposed by the learned Sessions Judge. Consequently, the appeal stands dismissed. The bail bond executed by the appellant, if any, shall stand cancelled. Consequently, the appeal stands dismissed. The bail bond executed by the appellant, if any, shall stand cancelled. The appellant shall be taken into custody to serve out the remaining portion of the sentence imposed on him.