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2006 DIGILAW 1699 (MAD)

Ganesan v. State rep by The Inspector of Police

2006-07-07

M.JEYAPAUL, R.BALASUBRAMANIAN

body2006
Judgment :- (Prayer: The Criminal Appeal filed against the judgment passed by the learned Principal District and Sessions Judge, Coimbatore in S.C.No.29/2003 dated 10.07.2003.) M. Jeyapaul, J. The accused who suffered the judgment of conviction in a case of murder moves this appeal. The learned Principal District and Sessions Judge, Coimbatore, convicted the accused under section 302 IPC and sentenced him to undergo life imprisonment and imposed a fine of Rs.5,000/-, in default to undergo RI for a further period of one year. 2. The charge as against the accused is that on 14.06.2002 at about 1.00 pm at Munisamy Nagar Main Road, Covai Ramanathapuram, the accused, having dashed the bicycle driven by the deceased from behind with TVS Scooty-vehicle, attacked him with billhook on his head and left side of the neck with an intention to cause his death and committed murder punishable under Section 302 IPC. 3. The brief text of the prosecution case as unveiled by the witnesses and other evidences is as follows: i) P.W.1/Subramaniam was working as watchman in the garden owned by Damodaran. The accused/Ganesan owns a garden over there and in the field house he was living with his wife. Shanmugam/deceased used to take his meals in the house of the accused and sleep over there. Shanmugam/deceased developed illicit intimacy with Chitra/D.W.1, who is the wife of the accused/Ganesan. The accused had informed P.W.1/Subramaniam that he had decided to kill Shanmugam as he had developed illicit intimacy with his wife. ii) Manoharan/P.W.4 has deposed that his brother Shanmugam came to his house about ten days prior to the occurrence and informed him that the accused wielded threat to his life suspecting his relationship with Chitra/D.W.1. iii) On 14.06.2002 at about 12.30 pm, P.W.1 went alongwith Shanmugam/deceased in a bicycle for taking tea in a nearby shop. When Shanmugam was riding the bicycle, P.W.1 took his seat as pillion rider in the same bicycle. The accused/Ganesan came in a TVS Scooty-vehicle from behind and dashed the bicycle driven by Shanmugam/deceased and as the result of which, P.W.1 and Shanmugam/deceased were thrown away. The accused having proclaimed that Shanmugam should have no occasion hereafter to sleep with his wife, took out Billhook/M.O.1 and attacked Shanmugam on his head and left neck. Shanmugam having received lethal injuries died on the spot itself. The accused sped away from the scene of occurrence in his motor cycle. The accused having proclaimed that Shanmugam should have no occasion hereafter to sleep with his wife, took out Billhook/M.O.1 and attacked Shanmugam on his head and left neck. Shanmugam having received lethal injuries died on the spot itself. The accused sped away from the scene of occurrence in his motor cycle. Not only P.W.1 but also Prabakaran/P.W.2 and Shanmugam/P.W.11, who were a realtors by profession witnessed the said occurrence. Veeran/P.W.3, who was serving as a watchman in the house of one Dr.Rajapandiyan at Munusamy Nagar, also witnessed the occurrence. iv) P.W.1 went to Ramanathapuram Police Station in Coimbatore, at about 1.30 pm on 14.06.2002 and gave a statement/Ex.P.1 to the Sub-Inspector of Police/P.W.12. P.W.12 registered a case in Cr.No.1040/2002 under Section 302 IPC and he prepared express FIR/Ex.P.11 and dispatched the original to the learned Judicial Magistrate and copies thereof to the higher officials concerned. v) The regular Inspector of Police/Mr.Natarajan-P.W.14 was leave on 14.06.2002. Mr.Ashok Nataraj/P.W.13 was placed as in-charge of Ramanathapuram Police Station. On receipt of information from the Sub-Inspector of Police/P.W.12, the Inspector of Police/P.W.13 proceeded to Ramanathapuram Police Station and received the copy of the FIR from P.W.12. At about 2.15 pm on the said day, P.W.13 rushed to the scene of occurrence and drew a rough sketch/Ex.P.17. He also prepared observation mahazar/Ex.P.2 in the presence of one Vasu/P.W.6. P.W.13 arranged to take Photographs of the scene of occurrence and the photos and negatives were marked as M.O.11 series. Thereafter, P.W.13 conducted inquest on the dead body of Shanmugam in the presence of panchayators and prepared inquest report/Ex.P.18. At 6.15 pm he recovered chappals/M.O.2, blood stained earth/M.O.4, sample earth/M.O.5, blood stained tar portion/M.O.6, sample tar portion/M.O.7 and green colour shirt/M.O.8 under seizure mahazar/Ex.P.3 in the presence of the above said witness. vi) On the basis of the requisition given by the Inspector of Police/P.W.13, Dr.Sundararajan/P.W.10 commenced postmortem examination over the dead body of Shanmugam and found the following injuries and other features: "THE FOLLOWING ANTEMORTEM INJURIES ARE NOTED: 1) Antero posteriorly oblique cut injury of 11cms x 1cm seen in the mid fronto parietal region, more on the right side. The margins of the wound are regular. The margins of the wound are regular. Left lower anterior end of the wound starts 4cms above medial end of left eyebrow and passes in an anteroposteriorly oblique manner., and ends posteriorly in the right parietal region 2cms away from the midline(Saggital), Exposing crack fracture vault of skull all along the line of injury. On reflecting the scalp flaps, posterior end of the above mentioned fracture, extends further for 5cms in an oblique manner, in the right parietal region of the vault of skull and ends in the midline (Saggital) Patchy areas of subarachnoid haemorrhage measuring 5cms x 5cms. In the left frontal region. 2) Transversely oblique cut injury of 9cms x 3cms see over the front and side of left side of neck, exposing left lateral aspect of thyrod cartilage, cut muscles, vesels and nerves. The lower inner end of the wound is 8cms below chin and 1cm left of midline. The outer end is 4cms below lower part of left pinna. The margins of the wound are regular. On further dissection of neck, all the muscles vessles and nerves along the line of external injury were found cut. Fracture c4 vertebra with partial cut in the left side of underlying spinal cord noted. 3) Abrasions seen in the following regions:- - 3cms x 2cms and 3cms x 1cm over back of middle third of trunk. - 2cms x 1cm and 3cms x 1cm over back of right elbow region. - 4cms x 1cm and 1cm x 1cm over lateral aspect of right hip. - 2cms x 2cms over lateral aspect of right knee. - 3cms x 2cms over lateral aspect of upper third of right leg. - 4cms x 1cm over dorsum of right foot. OTHER FINDINGS - Pleural and peritoneal cavities empty. - Lungs cut section pale. - Hyoid bone intact. - Heart chambers empty, Coronaries patent. - Stomach contains 200 ml of cream colour fluid with partially digested cooked food particles. No specific smell, Mucosa pale. - Small intestine contains 30 ml of bile stained fluid, No specific smell, Mucosa pale. - Liver, Spleen. Kidneys cut section pale. - Urinary bladder empty. - External genitalia nil injury. - Viscera preserved for chemical analysis. - Stomach contains 200 ml of cream colour fluid with partially digested cooked food particles. No specific smell, Mucosa pale. - Small intestine contains 30 ml of bile stained fluid, No specific smell, Mucosa pale. - Liver, Spleen. Kidneys cut section pale. - Urinary bladder empty. - External genitalia nil injury. - Viscera preserved for chemical analysis. - Sample of blood preserved." P.W.10, the doctor, has opined in his postmortem certificate/Ex.P.14 that the deceased appeared to have died of haemorrhage and shock due to the injury found on the neck of the deceased. vii) P.W.14/Inspector of Police, joined duty on 15.06.2002 and thereafter, he took up the case for further investigation. The constable who was present at the time of post-mortem examination recovered lungi/M.O.12, blood stained shirt/M.O.13, blood stained underwear/M.O.14, blood stained banian/M.O.15 and waist cord/M.O.16 from the dead body and entrusted the same to the Inspector of Police/P.W.14, for the purpose of investigation. viii) On 16.6.2002 at about 11.30 am, P.W.14 arrested the accused at Nataraja Thevar Garden in Veerappathevar Colony, in the presence of P.W.7/Jeyakumar. On the basis of the admissible portion in the confession statement given voluntarily by the accused, which was marked as Ex.P.4, billhook/M.O.1, Cement colour full sleeve shirt/M.O.9 and blood stained black colour pant/M.O.10 were recovered under seizure mahazar/Ex.P.5. On the basis of the identification made by the accused, two wheeler/M.O.3 was recovered from the house of P.W.5/Vijayalakshmi under relevant seizure mahazar Ex.P.6. ix) P.W.14 submitted a requisition to the Judicial Magistrate No.7, Coimbatore, to record the statement of Subramaniam/P.W.1, Prabakaran/P.W.2 and Shanmugam/P.W.11 under section 164 of Cr.P.C. The learned Judicial Magistrate/N.Sivakumar-P.W.8 recorded the statement of P.W.1, P.W.2 and P.W.11 and their statements were marked as Ex.P.7, Ex.P.8 and Ex.P.9 respectively. The material objects were sent to the learned Judicial Magistrate for the purpose of sending them for chemical examination. x) P.W.14 has also spoken to the fact that a complaint was given by Chitra/D.W.1 on 13.06.2002, the previous day to the occurrence and the same was registered as Application No.140/2002 and the same was marked as Ex.P.29. The accused was brought to the police station and obtained a remorseful letter from the accused, having sufficiently admonished him and the same was marked as Ex.P.30. Having completed the investigation, on 23.07.2002, P.W.14 laid the final report as against the accused for offence punishable under Section 302 IPC. The accused was brought to the police station and obtained a remorseful letter from the accused, having sufficiently admonished him and the same was marked as Ex.P.30. Having completed the investigation, on 23.07.2002, P.W.14 laid the final report as against the accused for offence punishable under Section 302 IPC. xi) The incriminating portions found in the testimony of the prosecution witnesses were put to the accused under section 313 of Cr.P.C. The accused would submit that a false case has been foisted on him and he has also denied each and every incriminating portion found in the testimony of the prosecution witnesses. xii) On the side of the defence D.W.1/Chitra, who is none other than the wife of the accused, was examined. She has deposed to the effect that she had never given the complaint/Ex.P.29 to the Inspector of Police/P.W.14 requesting him to enquire into the conduct of her husband. Though she disputed the information found in Ex.P.29, she has chosen to accept the signature found over there as that of her. She has stated that only after the present case was registered as against her husband, Ex.P.29 and Ex.P.30 came into existence. 4. The learned trial Judge, having relied upon the ocular testimony of P.W.1 to P.W.3 and P.W.11 in the background of the intrinsic evidences found in TVS Scooty-vehicle and the bicycle, has come to the conclusion that it was the accused who committed the murder of the paramour of his wife. 5. The learned senior counsel appearing for the appellant/accused would submit that P.W.2 and P.W.11 are chance witnesses to the occurrence. Though they had reported that they were examined on the next day to the occurrence, the statement under section 161 of Cr.P.C alleged to have been recorded from them, reached the court only on 3.9.2002 alogwith the charge sheet. It is his submission that those two witnesses have been planted by the investigation agency to strengthen the case of murder lodged against the appellant. Referring to the testimony of P.W.3, the learned senior counsel would submit that though he had spoken to the role of the accused, during the course of the chief-examination, he had completely given up his version that he witnessed the occurrence at the time when the occurrence took place during cross examination. Therefore his testimony will have to be rejected by the Court. Therefore his testimony will have to be rejected by the Court. Referring to the testimony of P.W.1, the learned senior counsel would submit that his evidence also does not inspire the confidence of the Court. It is quite unbelievable and the version of the prosecution cannot be accepted for the simple reason that the said witness travelled as pillion rider in the bicycle of the deceased for the purpose of taking tea along with him. At any rate, the case of the prosecution does not fall under the provision of Section 302 IPC. 6. The learned Additional Public Prosecutor would submit that the ocular testimony of P.W.1 to P.W.3 and P.W.11 would establish beyond any reasonable doubt that it was only the accused, who has committed the murder of the paramour of his wife. The intrinsic evidence found in the TVS Scooty-vehicle used by the accused and the bicycle used by the deceased would also support the case of the prosecution. The motive part of the case has been spoken to not only by P.W.1 but also by P.W.4/Manoharan, brother of the deceased. There is no warrant for interference by this court when a well considered judgment has been passed by the learned trial judge, he lastly submitted. 7. Veeran/P.W.3 a watchman working in a Doctor's house nearby to the scene of occurrence has spoken to the fact during the course of the Chief-examination that he came out of the house hearing some noise and witnessed the whole occurrence. But, if we go through the cross-examination portion, we find that he has blabbered that he had not come out of the house when the occurrence took place. It is his version that occurrence could not be seen from the house. Taking into consideration the version of P.W.3 in the cross-examination, we find that he could not have witnessed the occurrence at all. Therefore his evidence does not inspire judicial confidence. 8. Prabakaran/P.W.2 and Shanmugam/P.W.11 have been examined on the very next day of the occurrence as per the prosecution. But, as rightly pointed out by the learned senior counsel for the appellant/accused, their statements have been recorded under Section 161 of the Cr.P.C and the same has reached the Court alongwith the chargesheet only on 3.9.2002. It is their version that they came to the police station on seeing the news item in the print media. But, as rightly pointed out by the learned senior counsel for the appellant/accused, their statements have been recorded under Section 161 of the Cr.P.C and the same has reached the Court alongwith the chargesheet only on 3.9.2002. It is their version that they came to the police station on seeing the news item in the print media. Of course, an identification parade was conducted facilitating them to identify the accused and they have reportedly identified the accused before the learned Judicial Magistrate-II/Mr.Gomathi Nayagam/-P.W.9. But, we will have to refer the statement given by the accused before the learned Judicial Magistrate, who conducted identification parade, that his photo was already taken by the police and the same had been published in all the news papers on the day when the identification parade was conducted. Considering the above facts and circumstances, we are not in a position to safely rely upon the testimony of P.W.2 and P.W.11. 9. Coming to the testimony of Subramaniam/P.W.1, we find that he has given a graphic account of the occurrence. He has also deposed to the effect that there was illicit intimacy between the deceased and Chirta/D.W.1, who is the wife of the accused. His testimony that Chirta/D.W.1 developed extra-matrital relationship with the deceased was fortified by the complaint/Ex.P.29 given by D.W.1/Chirta and the undertaking letter/Ex.P.30 executed by the accused. Of course D.W.1 would deny the version of the prosecution that Ex.P.29 was given by her and pursuant to which conciliation efforts were taken by the Inspector of Police/P.W.14 and the undertaking letter/Ex.P.30 came into existence on the previous day to the occurrence. It is pertinent to note that D.W.1 has admitted that the signature found in Ex.P.29 was that of hers. Only for the first time before the Court has she given a deposition to the effect that the signature in Ex.P.29 was obtained by force. We are inclined to rely upon Ex.P.29 and Ex.P.30 which would lead us to the conclusion that there had been some quarrel between the accused and his wife on account of the allegation leveled by the accused as against his wife alleging infidelity. 10. Manoharan/P.W.4 is none other than the brother of the deceased. He has stated that the accused had determined to do way with the life of the deceased as he suspected his relationship with his wife/Chirta-D.W.1. 10. Manoharan/P.W.4 is none other than the brother of the deceased. He has stated that the accused had determined to do way with the life of the deceased as he suspected his relationship with his wife/Chirta-D.W.1. Subramaniam/P.W.1 was serving as watchman in a nearby garden where the accused was serving as watchman. He has given a graphic account of the fact that the deceased, who used to dine in the house of the accused, developed illicit intimacy with Chitra/D.W.1, who is the wife of the accused. He has also stated to the fact that the accused has sternly warned the deceased and as a result of which the deceased had to get out of the house of the accused. P.W.1 would also depose to the fact that on account of such an illicit intimacy which the deceased had developed with his wife/Chirta-D.W.1, the accused picked up quarrel with his wife. Coming to the occurrence proper, P.W.1 has stated that he travelled as pillion rider in the bicycle ridden by the deceased. It is his version that the accused, who came in a TVS Scooty-vehicle from behind, dashed the bicycle of the deceased and thereafter, the accused having proclaimed that there should not be any occasion for the deceased to share bed with his wife, attacked the deceased on his head and neck and as a result of which the deceased instantaneously died on the spot. 11. After all, P.W.1 was a close friend of the deceased. Both of them had been doing similar avocation in the garden located close by. Therefore, it is quite natural for Subramaniam/P.W.1 to travel in the bicycle which was driven by the deceased at the time of the occurrence. Considering the manner in which the whole occurrence had taken place, as spoken to by Subramaniam/P.W.1, who travelled in the very same bicycle of the deceased, we find that his testimony is found to be credible and trustworthy. 12. The TVS Scooty-vehicle, driven by the accused at the time of the occurrence, belonged to the son of Vijayalakshmi/P.W.5. P.W.5 has deposed that it was she who lent the TVS Scooty-vehicle to the accused on the fateful day. It is found from her testimony that there was some peeling of paint in the mud-guard of the TVS Scooty-vehicle. The bicycle ridden by the deceased was recovered in the presence of Vasu/P.W.6. P.W.5 has deposed that it was she who lent the TVS Scooty-vehicle to the accused on the fateful day. It is found from her testimony that there was some peeling of paint in the mud-guard of the TVS Scooty-vehicle. The bicycle ridden by the deceased was recovered in the presence of Vasu/P.W.6. The bicycle had received an impact on its backside. This intrinsic evidence collected in this case would establish that there was a clash between the TVS Scooty-vehicle/M.O.3 and the bicycle/M.O.8. The case of the prosecution that the accused, who came by TVS Scooty, dashed against the bicycle driven by the deceased stands strengthened by the aforesaid intrinsic evidence found on record. 13. Though we have chosen to eschew the evidence of Veeram/P.W.3, Prabakaran/P.W.2 and Shanmugam/P.W.11, we find that the evidence of Subramaniam/P.W.1, who is the friend of the deceased, inspires the confidence of this Court. We find that the trial court has rightly arrived at the conclusion that it was only the accused who caused the death of the paramour of his wife by attacking on the head as well as on the neck. 14. Now, the question that arises for consideration is whether the accused has committed the offence of murder. The evidence available on record would establish that the accused had harboured an intention to kill the paramour of his wife as he had continued his illicit intimacy with his wife. The deceased who had been dining in the house of the accused, had developed illicit intimacy with the wife of the accused. Several warnings had been given by the accused to stop such a relationship, but it was no avail. Even on the previous day, it appears that the accused picked up a quarrel with his wife alleging her infidelity. Ex.P.29 would disclose that D.W.1 requested the Inspector of Police to admonish her husband, who committed cruelty on her suspecting her relationship with the deceased/Shanmugam. The accused had given an undertaking under Ex.P.30 that he would not commit such cruelty suspecting her infidelity. Since the deceased/Shanmugam had continued the illicit relationship with Chitra/D.W.1, the accused had not only beaten his wife, but had decided to do away with Shanmugam in order to live peacefully with his wife. The act of the deceased/Shanmugam had, of course, provoked the accused to take such an extreme decision. 15. Since the deceased/Shanmugam had continued the illicit relationship with Chitra/D.W.1, the accused had not only beaten his wife, but had decided to do away with Shanmugam in order to live peacefully with his wife. The act of the deceased/Shanmugam had, of course, provoked the accused to take such an extreme decision. 15. The further question that arises for our consideration is whether such provocation provided by the deceased would amount to a sustained provocation as expounded by this Court in various authorities. The cardinal difference between provocation as defined under Exception 1 to section 300 IPC and sustained provocation, has been expounded by this Court, in a case reported in 1989 L.W.(Crl) (Suyambukkani Vs. State), which reads as follows: "Though there has been here and there attempts in those decision to bring the sustained provocation under Exception 1 to S.300 IPC., there is a cardinal difference between provocation as defined under Section Exception 1 and sustained provocation. The only word which is common is 'provocation'. What Exception 1 contemplates is a grave and sudden provocation, whereas the ingredient of sustained provocation is a series of acts more or less grave spread over a certain period of time, the last of which acting as the last straw breaking the camel's back may even be a very trifling one. We are therefore far from grave and sudden provocation contemplated under Exception 1 to S.300 IPC. Sustained provocation is undoubtedly an addition by Courts, as anticipated by the architects of the Indian Penal Code." The continued illicit intimacy maintained by the deceased with D.W.1 has provoked the accused to take such an extreme decision. The provocation provided by the act of the deceased had been sustained, of course for some time, and the hell broke loose on the day of occurrence. Further, the wife of the accused also had chosen to lodge a complaint as against his genuine apprehension about her conduct. The police had sternly warned him not to behave in such a fashion suspecting the fidelity of his wife. The conduct of the deceased and the behavior of his wife had sufficiently provoked the accused to commit this murder. Though the murder was not committed out of sudden provocation, we find that the grave provocation provided not only by the deceased but also by D.W.1, which had been sustained for a limited length of time, caused the death of Shanmugam/deceased. Though the murder was not committed out of sudden provocation, we find that the grave provocation provided not only by the deceased but also by D.W.1, which had been sustained for a limited length of time, caused the death of Shanmugam/deceased. We find that the accused has caused the death of the paramour of his wife due to sustained provocation, which he harboured in his mind on account of the illicit intimacy between the deceased and his wife. Therefore, the case of the prosecution falls squarely under Exception 1 to section 300 IPC. 16. In the result, we set aside the judgment of conviction recorded against the accused by the Principal District and Sessions Judge, Coimbatore in S.C.No.29/2003 for offence under Section 302 IPC and instead, we find the accused guilty under Section 304(1) IPC for which he stands convicted and sentenced to undergo seven years Rigorous Imprisonment. The appeal is disposed of with the above modification in conviction and sentence.