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2008 DIGILAW 1084 (MAD)

Rajendran v. State, by Inspector of Police

2008-03-27

P.D.DINAKARAN, R.REGUPATHI

body2008
JUDGMENT :- R. Regupathi, J. The appellant/A-1 in Sessions Case No.71 of 2005 on the file of Sessions Judge, Perambalur, was convicted for an offence punishable under Section 302 IPC and was sentenced to undergo imprisonment for life and a fine of Rs.2,000/-, in default to undergo two months rigorous imprisonment. Aggrieved against the conviction and sentence, the present appeal has been preferred before this Court. 2. The case of the prosecution as per the charge framed by the trial Court is that on 14. 2001 at about 4.30 p.m., at the time when the deceased Manickaraj came to the house of the brother of the appellant, which is situated next to the house of the appellant, the appellant and his wife, A-2, in view of the enmity that existed with regard to the love affair between the deceased and P.W.8, daughter of the appellant, with an intention to kill the deceased, while A-2, with a vegetable cutter, inflicted a cut on the hand, the appellant inflicted cuts on the head, neck and hand of the deceased with an aruval and thereby, committed an offence punishable under Section 302 I.P.C. When questioned, both the accused denied the complicity of the offence charged and therefore, the trial of the case was taken up. 3. During the course of trial, the prosecution examined P.Ws.1 to 11, marked Exs.P.1 to P.16 and produced M.Os.1 to 7. P.Ws.1 to 4 were examined as eye witnesses to the occurrence. (a) As per the evidence of P.W.1, who is a neighbour of the accused, there was a love affair between the deceased and P.W.8, daughter of the appellant; on 14. 2001 at about 4.30 p.m., the deceased came to the residence of one Govindaraj, brother of the appellant, to collect money due to him and at that time, the appellant, armed with an aruval and A-2 armed with a vegetable cutter, came out from the residence and caused injuries on the deceased by saying that how can he come over there to see their daughter (P.W.8) and after inflicting injuries they ran away from the scene; that he found the deceased dead and hence, went to the police station and lodged the complaint, Ex.P.1. (b) P.Ws.2 and 3 are also residents of the same street and in so far as the occurrence is concerned, they have corroborated the evidence of P.W.1. (b) P.Ws.2 and 3 are also residents of the same street and in so far as the occurrence is concerned, they have corroborated the evidence of P.W.1. P.W.4, who is the sister of the deceased and who was also cited as an eye witness to the occurrence, also spoken to on similar lines. (c) P.W.5 is the brother of the deceased and he has been examined to substantiate the motive for the case of prosecution. It is his evidence that he came to know that when his brother, the deceased, went to the house of one Govindaraj, brother of the appellant, to collect money due to him, he was assaulted by the appellant. (d) P.W.11, Inspector of Police, on 14. 2001, when he was in the police station, at about 6.00 p.m. received the complaint, Ex.P.1 from P.W.1 and registered a case in Crime No.278 of 2001 for an offence punishable under Section 302 I.P.C. Ex.P.5 is the printed F.I.R. He despatched the complaint, Ex.P.1 and copy of the F.I.R. to Court through P.W.10, police constable and copies to the superior officials. He reached the scene of occurrence at 7.00 p.m., prepared observation mahazar, Ex.P.2, in the presence of P.W.6, Village Administrative Officer, drew rough sketch, Ex.P.6 and recovered blood-stained earth and sample earth, M.Os.3 and 4. Between 8.30 p.m. and 11.30 p.m., he conducted inquest over the dead body of the deceased Manickaraj and examined witnesses and recorded their statements. The inquest report is Ex.P.7. After inquest, he despatched the dead body to the hospital with a requisition to conduct autopsy. (e) On 14. 2001, the appellant surrendered before P.W.11 and in pursuance of the statement given at 15. a.m., he recovered M.O.1, aruval under a cover of mahazar. A2 was also arrested at 5.00 p.m. and in pursuance of her statement, M.O.2, vegetable cutter, was recovered under a cover of mahazar. Exs.P.8 and P.9 are the statements of A-1 and A-2 respectively and Exs.P.10 and P.11 are the respective mahazars. M.O.6, blood-stained banian and M.O.7, blood-stained dhoti, after they were produced by the constable, who was present at the time of post-mortem, were also recovered under mahazar, Ex.P.10 and M.Os.5 and 6, chappal and shirt were recovered under a cover of mahazar. The seized material objects were despatched to Court for receiving opinion of the chemical analyst. Exs.P.15 and P.16 are the Serology report and Biology report respectively. The seized material objects were despatched to Court for receiving opinion of the chemical analyst. Exs.P.15 and P.16 are the Serology report and Biology report respectively. (f) P.W.7 has been examined as an attesting witness who attested the statement of the accused and the mahazars for recovery of material objects from the accused, but he has been treated as hostile. (g) P.W.8, daughter of the accused, was examined for the purpose of substantiating the motive for the case of prosecution and she turned hostile. (h) P.W.9 is the doctor, who conducted post-mortem on the dead body of the deceased and he found the following external injuries:- "1. A cut injury on the right side neck from back to the front 14 cm. x 7 cm. x 5 cm. cervical bone fractured. 2. A cut injury 5 x 2 x 1 cm. on the left side neck behind the left ear. 3. A lacerated injury on the left forearm 10 x 4 cm. x bone depth. 4. A lacerated injury 5 x 4 x bone depth on the left wrist." The doctor issued Ex.P.4, post-mortem certificate and reserved his opinion pending report of chemical analysis and after the receipt of the same, he has given his final opinion opining that the deceased died of shock and haemorrhage due to the injuries sustained. P.W.9 has stated in his evidence that the said injuries could have been caused with weapons like M.Os.1 and 2 and injury No.1 is sufficient in the ordinary course of nature to cause death. (i) P.W.11 received the opinion from the medical officer as to the cause of death and also obtained post-mortem certificate and the report of chemical analyst and after examination of witnesses, filed the final report against the accused for the offence punishable under Section 302 I.P.C. on 27. 2001. (j) On conclusion of examination on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C., for which both the accused denied the commission of offence and pleaded innocence. Neither oral nor documentary evidence was produced on the side of the defence. (k) The learned trial Judge, on completing the trial and after hearing the arguments of both sides, convicted and sentenced the appellant as aforementioned, while acquitting A-2. Hence, the present appeal by the convicted accused. 4. Neither oral nor documentary evidence was produced on the side of the defence. (k) The learned trial Judge, on completing the trial and after hearing the arguments of both sides, convicted and sentenced the appellant as aforementioned, while acquitting A-2. Hence, the present appeal by the convicted accused. 4. The learned counsel for the appellant submits that in view of the acquittal of A-2, the case of the prosecution itself must be viewed with a doubt and caution and it is the deceased, who came to the scene of occurrence in front of the house of the accused, armed with aruval, M.O.1 and in spite of persuasion, he refused to return back and made an attempt to assault the appellant; there was a quarrel on account of that; thereafter, the weapon was snatched away from the deceased by the appellant and under such circumstances, the deceased sustained injuries at the hands of the appellant. He submits that the daughter of the accused, who has been examined as P.W.8, in her chief-examination, has specifically mentioned about the deceased coming to their residence and pulled her out by saying that they can go out and perform their marriage because that day was an auspicious day; that since the deceased was under prohibited relationship, she refused to go along with him and under such circumstances, the appellant objected the conduct of the deceased; thereafter, the deceased took out an aruval, which was kept in his motorcycle and made an attempt to assault her father, but at that time, when her father tried to snatch away the weapon, the deceased sustained injuries. The learned counsel, relying on such statement of P.W.8 made in her chief examination, submitted that the occurrence had not taken place in the manner put forth by the prosecution. He further submits that since the occurrence took place in front of the house of the appellant, it must be presumed that it is the deceased, who came there to indulge in a quarrel and under such circumstances, even if the accused has caused injuries on the deceased, it cannot be construed that the appellant caused such injuries with intention and therefore, he is entitled for acquittal. 5. 5. Per contra, the learned Additional Public Prosecutor submits that the occurrence took place at 4.30 p.m. in the broad day light; P.Ws.1 to 4 were examined as eye witnesses and that about the occurrence, they have given evidence that the deceased came and was standing in front of the house of the appellant and at that time, it was the accused, who came out with weapons and questioned the deceased as to how he can come over there to see his daughter and so saying, delivered cuts on the neck of the deceased. He submits that the intimacy of the deceased with P.W.8, daughter of the accused, also has been spoken to by these witnesses; that though it is stated that the deceased came only to the residence of the brother of the appellant to collect money due to him, the fact remains that there was love affair between the deceased and P.W.8 and that the occurrence took place in consequence of a quarrel between the accused and the deceased; under such circumstances, the accused have taken the law in their own hands by taking deadly weapons and caused injuries on the deceased and therefore, the offence under Section 302 is substantiated and the appellant was rightly convicted. Insofar as the second accused is concerned, since there are some contradictions between the eye witnesses, she has been acquitted giving benefit of doubt, but insofar as the overt act attributed to the appellant is concerned, it is consistent and hence, it is not a fit case for acquittal. 6. We have perused the entire materials placed on record and heard the submissions of both sides. 7. The occurrence took place in front of the house of the appellant. Admittedly, there was love affair between the deceased and P.W.8, daughter of the appellant. It is the defence case that the deceased came to the residence of the accused and invited P.W.8 to go along with him to perform their marriage on that day, the day being an auspicious day. Admittedly, there was love affair between the deceased and P.W.8, daughter of the appellant. It is the defence case that the deceased came to the residence of the accused and invited P.W.8 to go along with him to perform their marriage on that day, the day being an auspicious day. P.W.8, though has been examined by the prosecution to substantiate that there was love affair between her and the deceased and that they have agreed for marriage and were frequently meeting thereafter, has stated that on the date of occurrence she was not present in her house, however, she has gone to a temple and that she came to know about the occurrence only later. P.W.8 resiled from her earlier statement given to the police officer and in her chief examination, she has stated that she was present in the house and at that time, the deceased came there and invited her to go and perform their marriage; that he even pulled her hand and when she refused to go along with him, the appellant came there and questioned the conduct of the deceased and under such circumstances, the deceased took out an aruval from his motorcycle and attempted to assault her father, but her father however snatched the weapon from the deceased and at that time, the deceased sustained injuries. The defence put forth by way of suggestion to the eye witnesses suits in with the chief examination of P.W.8. P.W.8 is after all the daughter of the accused and we cannot expect that she should support the version of the prosecution. On perusal of the evidence of P.W.8, we could see that she has been obliged to promote the defence put forth by the accused. To accept such evidence, we may have to simply disbelieve the version of P.Ws.1 to 3, which cannot be done because of the reason that those eye witnesses are neighbours and they do not have any axe to grind against the accused. However, it is the evidence of P.W.8, in her chief examination that the deceased made an assault with aruval on the appellant. On verification, we find that the appellant did not receive any injury. In view of the availability of other materials, we do not suppose to accept the defence theory. However, it is the evidence of P.W.8, in her chief examination that the deceased made an assault with aruval on the appellant. On verification, we find that the appellant did not receive any injury. In view of the availability of other materials, we do not suppose to accept the defence theory. The evidence of P.Ws.1 to 3, eye witnesses, are consistent insofar as the overt act attributed to the accused is concerned coupled with the motive put forth by the prosecution and hence, we are of the considered view that reliance could be placed on the prosecution witnesses. 8. While accepting the evidence of P.Ws.1 to 3, eye witnesses, we may also see the background and circumstances under which the accused were placed. P.W.8 is their daughter and she was in love with the deceased and since it was in a prohibited relationship, naturally the parents would object for the same and in spite of that, the deceased and P.W.8 were continuing their affair. Under such circumstances only the occurrence had taken place. At the time when the appellant and his wife, A-2 saw the deceased in front of their house, it is quite natural that they got enraged and due to which, the appellant took out the weapon from his residence as put forth by the witnesses and made an assault. While assessing the mental background of the appellant, we find that the appellant did not have any intention or premeditation towards the deceased. The occurrence took place in the spur of moment because of the presence of the deceased in front of the residence of the appellant and hence, we find that the deceased is the aggressor. 9. Looking at the situs of the injuries sustained by the deceased, they have been caused on the shoulder and not on the head. That apart, only one injury has been attributed to the appellant and the other injury has been attributed to the second accused, who has been acquitted by the trial Court based on certain contradictions in the evidence. In view of the facts and circumstances of the case, we find that the offence committed by the appellant will not come under Section 302 I.P.C. However, it may attract an offence under Section 299 I.P.C., culpable homicide not amounting to murder, for want of premeditation and other circumstances. In view of the facts and circumstances of the case, we find that the offence committed by the appellant will not come under Section 302 I.P.C. However, it may attract an offence under Section 299 I.P.C., culpable homicide not amounting to murder, for want of premeditation and other circumstances. Moreover, since there are materials to substantiate that there was a wordy quarrel between the accused and the deceased, we could see that the appellant/A-1, while deprived of his power of self-control thinking about the relationship of the deceased with his daughter, committed the offence, which took place in a momentary face of insanity. Therefore, the offence under Section 302 I.P.C. is not made out, instead the offence would fall under Section 304 Part-I I.P.C. 10. As regards the sentence of imprisonment is concerned, considering the facts and circumstances of the case, we find that ends of justice would be met by imposing a sentence of five years rigorous imprisonment. 11. With the above modification in conviction and sentence, the appeal is partly allowed. It is reported that the accused is on bail. The bail bond executed by the accused stands cancelled and the learned Sessions Judge shall take steps to commit the accused to jail in order to undergo the remaining period of sentence. The period already undergone will be set off.