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2008 DIGILAW 728 (MAD)

Selvi v. State rep. by Inspector of Police

2008-02-28

D.MURUGESAN, V.PERIYA KARUPPIAH

body2008
Judgment :- V. Periya Karuppiah, J. This appeal is directed against the conviction and sentence of the appellant/accused for the offence under Section 302 IPC to undergo imprisonment for life and also to pay a fine of Rs.1,000/-, in default to undergo six months imprisonment by the judgment of the learned Sessions Judge, The Nilgiris dated 19. 2005 made in S.C.No.39 of 2005. 2. The appellant is the sole accused and the case of the prosecution is that the accused was residing in a tent made of plastic sheets at a site belonging to one Sait. P.W.1 and her husband-Sakthivel, the deceased, were also residing in the same site. All of them were eking their livelihood by collecting and selling waste materials and empty bottles. P.W.1 and the accused were not in good terms. On 6. 2004 at about 10.15 p.m., there ensued a quarrel between one Murugan and P.W.1 and due to the said quarrel the said Murugan suffered fits and fell in front of the tent of the accused. The deceased, who was in inebriated condition, came there to see the said Murugan but, unable to balance himself, he also fell on the tent of the accused as a result of which the food kept inside the tent of the accused got splashed. P.W.4 pushed the deceased inside the tent to see the splashing of food. Enraged over the splashing of food, the accused stabbed the deceased with a knife on his left chest, right chest and stomach. 3. P.W.2 immediately took the injured to the Government Headquarters Hospital, Udhagamandalam, where he was examined by the doctor, P.W.6 at 11.00 p.m. He issued the accident register, Ex.P-7 noting five external injuries on the body of the injured and declared him as brought dead. He also sent intimation under Ex.P-6 to the police. 4. On receipt of death intimation under Ex.P-6, P.W.8, the Sub Inspector of Police attached to B-1 Town Central Police Station, Udhagamandalam went to the hospital and recorded the complaint, Ex.P-1 from P.W.1 at about 00.30 hours on 6. 2004. He came to the police station at 1.15 a.m., and registered a case in Cr.No.318 of 2004 for the offence under Section 302 IPC. The First Information Report is Ex.P-10. He forwarded the express reports to the Court as well as to the higher police officials. 5. 2004. He came to the police station at 1.15 a.m., and registered a case in Cr.No.318 of 2004 for the offence under Section 302 IPC. The First Information Report is Ex.P-10. He forwarded the express reports to the Court as well as to the higher police officials. 5. P.W.9, the Inspector of Police in-charge of B-1 Town Central Police Station, Udhagamandalam, proceeded to the scene of occurrence at 6.30 a.m., on 6. 2004 and prepared an Observation Mahazar, Ex.P-2 and also drew a rough sketch, Ex.P-11 in the presence of P.W.5 and another witness. He took photographs of the scene of occurrence and the said photographs and negatives are marked as Exs.P-12 & P-13 series. He recovered the bloodstained concrete pieces, M.O.2, sample concrete pieces, M.O.3, bloodstained towel, M.O.4 and the bloodstained paper pieces, M.O.5 under the mahazar, Ex.P-3. Thereafter, he conducted inquest on the body of the deceased in the presence of panchayatdars and witnesses between 9.15 a.m., and 11.15 a.m., and prepared the inquest report Ex.P-14. He sent a requisition under Ex.P-8 to the doctor for conducting post-mortem on the body of the deceased. 6. P.W.7, Assistant Surgeon attached to Government Headquarters Hospital, Udhagamandalam commenced post-mortem on the body of the deceased at 12.30 p.m., on 6. 2004 and he noted the following external injuries:- "1. Elliptical shaped injury measuring 3 x 4 cm - left chest. 2. Upper abdomen 4 cm x 2 cm with omentum protruding. 3. Abrasion right thumb. 4. Transverse-linear abrasion right wrist. 5. Elliptical injury right chest. .6. Abrasion left forearm." .He issued the post-mortem certificate, Ex.P-9 with his opinion that the deceased would appear to have died of shock due to injuries to vital organs namely, heart, lung, liver and spleen. 7. P.W.9, continuing with his investigation, arrested the accused at 7.00 p.m., on 6. 2004 near the Muniswaran temple and in pursuance of the admissible portion of his confession under Ex.P-4, he seized the knife, M.O.1 which was hidden in a hole in ATC bus stand under the mahazar, Ex.P-5 at 8.30 p.m., in the presence of P.W.5 and another witness. He brought the accused to the police station and remanded him to judicial custody. He also seized the bloodstained towel, M.O.6 and the bloodstained pant, M.O.7 produced by the Head Constable from the body of the deceased under the special report, Ex.P-15. He brought the accused to the police station and remanded him to judicial custody. He also seized the bloodstained towel, M.O.6 and the bloodstained pant, M.O.7 produced by the Head Constable from the body of the deceased under the special report, Ex.P-15. He sent the seized material objects to the Court. He examined the other witnesses and recorded their statements. 8. P.W.10, the regular Inspector of Police, on return from leave, took up investigation in the case on 6. 2004. He proceeded to the scene of occurrence and examined P.Ws.1 to 7. He examined the doctors, P.Ws.6 & 7 and other witnesses and recorded their statements. He gave a requisition under Ex.P-16 to the Court for sending the material objects for chemical examination and received the chemical analysts report, Ex.P-18 and the serologists report, Ex.P-19. After completing investigation, he laid the charge sheet against the accused for the offence under Section 302 IPC before the Court on 30.6.2004. 9. To bring home the charges against the accused, the prosecution examined 10 witnesses, marked 19 exhibits and produced 7 material objects. 10. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against her, she denied them as false. One witness namely, D,W.1 was examined on the side of the defence, but no document was marked. However, the learned trial Judge found the accused guilty, convicted and sentenced her for the offence as stated above. .11. Mr. V. Rajamohan, learned counsel for the appellant/accused would submit in his arguments that the prosecution has examined P.W.1, the wife of the deceased, P.W.2, the brother of P.W.1 and P.W.3, yet another neighbour in order to substantiate its case as eye-witnesses. Though P.W.4, examined as an eye-witness, had turned hostile, the trial Court had come to the conclusion on the strength of the evidence adduced by P.Ws. 1,2 & 3 and convicted and sentenced the accused as aforesaid. Learned counsel would further submit that the occurrence had taken place on 6. Though P.W.4, examined as an eye-witness, had turned hostile, the trial Court had come to the conclusion on the strength of the evidence adduced by P.Ws. 1,2 & 3 and convicted and sentenced the accused as aforesaid. Learned counsel would further submit that the occurrence had taken place on 6. 2004 at about 10.30 p.m., when the accused and the deceased were doing the work of collecting the waste materials and in the alleged enmity between them, the murder is said to have been caused for the reason that the deceased had fallen in front of the house of the accused while he was going to see one Murugan who was suffering from fits and thereby splashed the food stored in the plastic container and enraged upon that, the accused had stabbed the deceased and had caused the murder and there is no motive or enmity to commit such an offence. When the eye-witnesses, relied upon by the trial Court, have not spoken about the glowing of light in the scene of occurrence, they could not have identified the accused stabbing the deceased. He would further submit that the injuries said to have been inflicted upon the deceased could not have been caused by a lady and the death of the deceased due to the act of somebody has been fastened against the accused as if she has committed the murder. Moreover, he would submit that the prosecution has not examined the other eye-witnesses so as to prove the prosecution case beyond reasonable doubt and therefore the benefit of doubt may be given to the accused and the accused may be acquitted. 12. Learned counsel for the appellant would also submit that in the event this Court comes to the conclusion that the accused is guilty of committing the murder of the deceased, the said incident had taken place out of a sudden provocation on the falling of the accused in front of her house and the food collected by her had splashed and immediately on such enragement, she has attacked the deceased with the knife and the said injuries caused to the deceased have become fatal. Therefore the offence committed by the accused could have been classified as culpable homicide not amounting to murder without any intention of causing the death and without the knowledge that those injuries would cause the death of the deceased. Therefore the offence committed by the accused could have been classified as culpable homicide not amounting to murder without any intention of causing the death and without the knowledge that those injuries would cause the death of the deceased. Hence the learned counsel pleaded for a lesser offence to be imposed on the accused under Section 304 (Part-II) IPC. .13. We have heard Mr.V.R. Balasubramanian, learned Additional Public Prosecutor for the respondent. He would submit in his arguments that the evidence of P.Ws.1 & 2, the relative witnesses supported by the evidence of P.W.3 would establish the case of the prosecution and there is no necessity of further examining the independent witnesses. The evidence of these two witnesses has been corroborated by P.W.3 and all their evidence have been corroborated by the medical evidence to support the injuries found on the body of the deceased person. He would further submit that the evidence of P.Ws.1 to 3 would go a long way to show about the glowing of light in the place of occurrence at the time of commission of the offence. Therefore there is no doubt about the happening of the occurrence as narrated by the witnesses P.Ws.1 to 3. He would also submit that the complaint was immediately lodged by P.W.1 and the same was forwarded to the Court on the same day itself and he was arrested and the inquest was conducted immediately and the inquest report would also go a long way to show that the cause of death was due to the stab injuries sustained by the deceased person at the hands of the accused. Both the evidence of the prosecution witnesses and the inquest report would also go a long way to show that the light was glowing as it was a full moon day, and the glowing of light in the house of the accused and the street light would be sufficient for identifying the accused as well as the deceased at the time of occurrence. He would further submit that the motive has also been established through the witnesses as to the strong enmity in between the accused and the deceased and therefore it cannot be said that the occurrence had taken place out of a sudden provocation on the part of the accused and therefore the conviction and sentence passed by the trial Court may be maintained and the appeal may be dismissed. 14. We have given our anxious thought to the arguments advanced by both sides. The case of the prosecution is that on 6. 2004 at about 10.30 p.m., the deceased, in a drunken mood, had gone to see one Murugan who fell down in front of the house of the accused due to fits and when he had visited him he had also fallen in front of the house of the accused, thereby the food stored in a plastic container had splashed and immediately the accused had taken a knife and stabbed on the body of the deceased. According to the prosecution, the accused had caused stab injuries on the left chest, right lower chest and also on the left upper abdomen of the deceased and thereby the deceased succumbed to those injuries. We could see from the records that immediately after the occurrence, the complaint was given by P.W.1 at 00.30 hours on 6. 2004 and the same was registered and immediately despatched to the jurisdictional Magistrate. On the basis of registration of the case, investigation had commenced and the inquest was conducted by the Investigating Officer on the morning at 9.15 a.m., and was completed at 11.15 a.m., and thereafter the body of the deceased was sent for postmortem through the Police Constable and the post-mortem was commenced by the post-mortem doctor, P.W.7 on 6. 2004 at 12.30 p.m., and the cause of death was noted as shock due to the injuries to the vital organs--heart, lung, liver and spleen. The injuries as spoken to by P.Ws.1 to 3 on the overt act of the accused and the deceased were corroborated by the post-mortem certificate, Ex.P-9 and also through the evidence of the post-mortem doctor, P.W.7. Therefore the evidence of the eye-witnesses P.Ws.1 to 3 cannot be doubted, especially when the independent witness, P.W.3 had supported the evidence of P.Ws.1 & 2. Therefore the evidence of the eye-witnesses P.Ws.1 to 3 cannot be doubted, especially when the independent witness, P.W.3 had supported the evidence of P.Ws.1 & 2. There is no suggestion made to P.W.3 as to why he had come to Court to depose against the accused. The weapon was also seized by the police after the arrest and confession made by the accused. The confession of the accused leading to the recovery under Section 27 of the Evidence Act has been spoken to by the witness, P.W.5 who was present at the time of arrest of the accused and the admissible portion of the confessional statement and the seizure mahazar for the seizure of the weapon have been produced as Exs.P-4 & P-5. The weapon and other clothes recovered from the body of the deceased were sent for chemical examination and the same would go a long way to show that they contained the stains of human blood but the grouping was not conclusive. Therefore we could see that the seizure of M.O.1 weapon from the accused on the same day of arrest on 6. 2004 would go a long way to show that the accused was connected with the offence of committing the murder of the deceased person. Therefore we are of the considered view that the accused had caused the injuries on the body of the deceased and those injuries had caused the death of the deceased person. 15. Let us now consider the argument advanced by the learned counsel for the appellant regarding the sentence. The learned counsel submitted that the offence was committed by the accused only out of a sudden provocation on seeing the food splashing from the plastic container collected by her and immediately enraged over that, she had committed the offence by stabbing the deceased. The learned counsel further submitted that the accused is a woman and therefore she did not have any intention to cause the death of the deceased for the simple reason of splashing the food. Considering the above submission, we are of the considered view that the enmity as spoken to by the prosecution witnesses has not been proved to the effect that the accused upon a grudge over the deceased had murdered him. Considering the above submission, we are of the considered view that the enmity as spoken to by the prosecution witnesses has not been proved to the effect that the accused upon a grudge over the deceased had murdered him. The occurrence as spoken to by P.Ws.1 to 3 would go a long way to show that the injuries have been caused by the accused after a sequence of events namely, the falling of Murugan due to fits in front of the house of the accused and when the deceased-Sakthivel, in a drunken mood, had gone over there to see the said Murugan, he had also fallen into the house of the accused and the food had splashed as he fell on the plastic container and therefore the overt act of the accused against the deceased would be without any enmity as spoken to by the prosecution, as the occurrence had happened upon a sudden provocation as to the falling of the deceased over the food collected by the accused in a plastic container. However, the injuries inflicted on the body of the deceased are on the left chest, right lower chest and upper left abdomen which in turn have caused internal injuries on his lungs, liver and spleen. When we consider the sequence of events and the nature of injuries, the accused would not have stabbed the deceased with an intention of killing him by causing those injuries and hence the offence committed by the accused would squarely attract the offence under Section 304 (Part-II) IPC and not under Section 302 IPC. Therefore, we are of the considered view that the accused should have been punished by the trial Court only under Section 304 (Part-II) IPC. 16. In view of our above discussion, we set aside the conviction and sentence imposed on the appellant/accused under Section 302 IPC and instead convict the appellant/accused for the offence under Section 304 (Part-II) IPC and sentence her to undergo rigorous imprisonment for a period of seven years. The fine amount of Rs.1,000/- imposed by the trial Court with the default sentence shall remain unchanged. With this modification in the conviction and sentence, the criminal appeal is dismissed. It is seen from the records that the appellant/accused is on bail. The fine amount of Rs.1,000/- imposed by the trial Court with the default sentence shall remain unchanged. With this modification in the conviction and sentence, the criminal appeal is dismissed. It is seen from the records that the appellant/accused is on bail. The learned Sessions Judge, The Nilgiris at Udhagamandalam shall take steps to secure the presence of the appellant/accused and commit her to prison to undergo the remaining period of sentence.