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2015 DIGILAW 3080 (MAD)

Murugan v. State of Tamil Nadu

2015-09-15

S.NAGAMUTHU, V.S.RAVI

body2015
JUDGMENT (Judgment of the Court was made by S.NAGAMUTHU, J.) The appellant is the sole accused in S.C.No.65 of 2008 on the file of the learned Principal District and Sessions Judge, Theni. He stood charged for the offences under Sections 294-B and 302 IPC. By judgment dated 27.07.2010, the trial Court acquitted him from the charge under Section 294-B IPC, but convicted him under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-in default to undergo rigorous imprisonment for one year. Challenging the same, the appellant is before this Court with this appeal. 2. The case of the prosecution in brief is as follows; (a) The accused is the elder brother of the deceased. There was a joint family property which remained undivided between the deceased, accused and the other sharers. All the other sharers had decided to dispose of the said property and to take their respective shares. But, the accused was protesting and he was not agreeable for the same. The relatives and the villagers tried their level best to settle the issue amicably, but failed. Ultimately, with great difficulty, the property was sold for Rs.4,40,000/-. Out of which Rs.1,50,000/-was given to the deceased. The accused was enraged over the same. The sale took place two months prior to the occurrence. Therefore, the quarrel continued. (b) It is further alleged that the deceased had developed illicit intimacy with the wife of the accused. The wife of the accused and the deceased were found together in compromising position by the accused. After that, the accused had sent his wife out of the matrimonial home. This is also stated to be the motive between the appellant and the deceased. (c) While so, on 04.08.2007, there was a quarrel between the accused and the deceased. On 05.08.2007, early in the morning, that was around 4.15 a.m., the deceased proceeded to the milk depot for the purpose of selling milk. He went in his bicycle along with the milk can. At that time, the accused was found standing in front of the house with an iron pipe. The accused attempted to attack the deceased. PW1 cried and cautioned the deceased. Leaving the bicycle down, the deceased ran away. The accused gave a chase and in front of the house of one Balamuthu, reached him. Then, he attacked him indiscriminately with the iron pipe. The accused attempted to attack the deceased. PW1 cried and cautioned the deceased. Leaving the bicycle down, the deceased ran away. The accused gave a chase and in front of the house of one Balamuthu, reached him. Then, he attacked him indiscriminately with the iron pipe. PW1 tried to rescue the deceased, but the accused intimidated her by brandishing the iron pipe against her also. The deceased succumbed to injuries instantaneously. The occurrence was witnessed by PWs.1 and 2. (d) Then, PW1 proceeded to the Police Station and made a complaint (Ex.P1). PW10 -the then Sub Inspector of Police of Cumbam North Police Station, received the said complaint and registered the same in Crime No.301 of 2007 under Sections 341 and 302 IPC. Ex.P8 is the FIR. He forwarded Ex.P1 and P8 to the Court and handed over the Case Diary to the Inspector of Police for investigation. (e) PW14 took up the case for investigation, proceeded to the place of occurrence at 6.30 p.m. and prepared an observation mahazar and a rough sketch in the presence of PW8 and another witness. Then, he recovered the iron pipe at the place of occurrence. He also recovered the bloodstained earth and sample earth from the place of occurrence under mahazar. Then, he conducted inquest on the body of the deceased and forwarded the body for postmortem. PW6-Dr.Banumathi conducted autopsy on the body of the deceased on 05.08.2007 at 1.30 p.m. She found the following injuries; “External injuries: 1) Lacerated wound of about 2x 2 x 1.15 cm on the left side of lower lip. 2) Lacerated wound of about 1 x 1.5 x 1 cm size on the left side of upper lip. 3) Lacerated wound of about 5 cm diameter behind the ear left side. 4) Lacerated wound of about 8 x 2 x bone depth over left parietal & temporal region and inward (nc) bone). 5)Lacerated wound of about 5 x 3 x bone depth over left occipital region & inward (nc) of bone. On opening the scalp left parietal & temporal & occipital bone fracture irregularly and broken into flagment. Membrane undernear – lacerated (nc) left side brain substances lacerated and about 300 ml of clotted blood seen inside the cranial cavity. Thorax : Hyoid bone intact. Ribs – No fracture. Heart, both lungs – pale. Abdomen, liver , spleen, kidneys – pale. Stomach – pale & empty. Membrane undernear – lacerated (nc) left side brain substances lacerated and about 300 ml of clotted blood seen inside the cranial cavity. Thorax : Hyoid bone intact. Ribs – No fracture. Heart, both lungs – pale. Abdomen, liver , spleen, kidneys – pale. Stomach – pale & empty. Intestine pale & rectum loaded with (nc) matter. Bladder – pale & empty.” Ex.P3 is the postmortem certificate and Ex.P4 is her final opinion. According to her, the deceased would appear to have died of shock and haemorrhage due to the head injuries sustained. (f) During the course of investigation, PW14 arrested the accused at 3.30 p.m. on 05.08.2007 at Theni Bus-stand in the presence of PW5 and another witness. On such arrest, he made a voluntary confession, but no discovery of any fact was made out of the same. Then, he forwarded the accused to the Court for judicial remand. He made a request to the Court to forward the material objects for chemical examination. Then, the investigation was taken over by PW15 on 15.09.2007. On completing the investigation, he laid charge sheet against the accused. (g) Based on the above materials, the trial Court had framed charges, as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the same, on the side of the prosecution as many as 15 witnesses were examined and 15 documents and 9 material objects were marked. (h) Out of the said witnesses, PWs.1 & 2 are the eyewitnesses. They have vividly spoken about the entire occurrence. PW3 is the cousin of the accused, but he is not an eyewitness to the occurrence. He has stated about the presence of PW1 at the place of occurrence. PW4 is the father of the deceased, who has spoken about the motive for the occurrence. PW5 is the witness in whose presence the accused was arrested. PW6 has spoken about the postmortem conducted by her and the final opinion given regarding the cause of death. PW7 is the Panchayat or, who mediated between the parties for partitioning the property. PW8 is the witness, who has spoken about the preparation of the observation mahazar, recovery of iron pipe, bloodstained earth and sample earth from the place of occurrence. (i) PW10 has spoken about the registration of the case. PW7 is the Panchayat or, who mediated between the parties for partitioning the property. PW8 is the witness, who has spoken about the preparation of the observation mahazar, recovery of iron pipe, bloodstained earth and sample earth from the place of occurrence. (i) PW10 has spoken about the registration of the case. PW11 is the employee of the Tamil Nadu Electricity Board, who has stated that there was no electricity failure at the relevant point of time at the place of occurrence. PW12 – the Head Clerk of the Magistrate Court has spoken to the fact that he forwarded the material objects for chemical examination on the orders of the learned Magistrate. According to the report, human blood was found on all the objects, including the iron pipe. PW13 – Scientific Assistant has spoken about the same fact. PW14 and PW15 have spoken about the investigation done. (j) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., he denied the same as false. However, he did not choose to examine any witness nor to mark any document on his side. (k) Having considered all the above materials, the trial Court convicted the appellant/accused under Section 302 IPC and accordingly punished him. That is how he is before this Court with this appeal. 3. In this appeal, since the learned counsel on record for the appellant had not made appearance, this Court appointed Mr.J.M.Abdul Rahman, the learned Legal Aid Counsel to argue the case of the appellant. We have heard him and the learned Additional Public Prosecutor appearing for the State. We have also perused the records carefully. 4. The learned counsel for the appellant would submit that the presence of PWs.1 and 2 at the place of occurrence cannot be believed. He would further submit that the occurrence would not have taken place in the manner as it is projected by the prosecution. He would further submit that the motive has not been established by the prosecution. He would also submit that PWs.1 and 2 are the interested witnesses and therefore, their evidences should be rejected. He would next submit that there is no independent witness examined. He would add that there are some contradictions between the evidences of PWs.1 and 2 which make their evidences unbelievable. He would also submit that PWs.1 and 2 are the interested witnesses and therefore, their evidences should be rejected. He would next submit that there is no independent witness examined. He would add that there are some contradictions between the evidences of PWs.1 and 2 which make their evidences unbelievable. At any rate, according to the learned counsel, the prosecution has failed to prove the case beyond reasonable doubts and therefore, the appellant is entitled for acquittal. 5. The learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, there is no delay in preferring the complaint and in despatching the same to the Court which vouches for the truth of the contents in the FIR. He would further submit that though PWs.1 and 2 are closely related, on that score, their evidences cannot be rejected. Their evidences are cogent and highly convincing. He would further submit that the medical evidence duly corroborates the eyewitness account of PWs.1 and 2. He would next submit that the motive has been established by the prosecution through PW1. Thus, according to the learned Additional Public Prosecutor, the prosecution has clearly proved the case beyond reasonable doubts. 6. We have considered the above submissions. So far as the motive part is concerned, we find that there is convincing evidence available on record through PW1. PW1 has stated about the dispute regarding the division of undivided property belonging to the Joint family. She has also stated about the fact that the deceased had developed illicit intimacy with the wife of the accused. She has further stated that when the deceased was in a compromising position with the wife of the accused, the accused noticed the same. These are all stated to be the motive for the occurrence. In our considered view, the said motive has been clearly established by the prosecution. But, at the same time, since motive is a double edged weapon, one cannot rush to the conclusion that the accused has committed the crime solely based on the motive. 7. Next comes the eyewitness account of PWs.1 and 2. PW1 is the wife of the deceased and PW2 is the uncle of PW1. Though they are closely related and highly interested in the case of the prosecution, on that score, their evidences cannot be rejected. 7. Next comes the eyewitness account of PWs.1 and 2. PW1 is the wife of the deceased and PW2 is the uncle of PW1. Though they are closely related and highly interested in the case of the prosecution, on that score, their evidences cannot be rejected. If their evidences inspire the confidence of the Court, there can be no impediment for this Court to act upon these evidences. Therefore, the test is whether their evidences are believable, thereby inspiring the confidence of this court. We have carefully gone through the entire evidence, including the cross examination of PWs.1 and 2. We find nothing on record to disbelieve their evidences. The presence of PW1 cannot be disbelieved, because the occurrence had taken place near her house. So far as the presence of PW2 is concerned, he was in his house and when he opened the door, on hearing the alarm of PW1, he witnessed the entire occurrence. Thus, the presence of PWs.1 and 2 cannot be doubted. In our considered view, their evidences are cogent and convincing, and the same are duly corroborated by the medical evidence also. 8. As rightly pointed out by the learned Additional Public Prosecutor, there is no delay in preferring the complaint and in despatching the same to the Court, which also to some extent vouches for the truth of the case of the prosecution. Thus, we find enormous evidence on record to establish that it was this accused who attacked the deceased with iron pipe, which resulted in the death of the deceased. 9. Now, the question is “what is the offence the accused committed by the said act?” The learned counsel for the appellant would submit that the act of the accused would squarely fall under the first exception to Section 300 IPC. The learned Additional Public Prosecutor would, however, dispute the same. According to him, the act of the accused would squarely fall under the first limb of Section 300 IPC, but not under any one of the exceptions to Section 300 IPC. We have considered the above submission. It is in evidence that the deceased had developed illicit intimacy with the wife of the accused. This is stated to be the main motive. On the previous day, there was some quarrel between them. We have considered the above submission. It is in evidence that the deceased had developed illicit intimacy with the wife of the accused. This is stated to be the main motive. On the previous day, there was some quarrel between them. When that be so, on the next day, certainly, there would have been some quarrel, early in the morning at 4.15 a.m. when the deceased was proceeding to the milk depot. 10. In our considered view, but for some quarrel arising out of the above affairs between the deceased and the wife of the accused, the accused would have had no provocation to attack the deceased at that odd hour. In this regard, we cannot expect the prosecution always to come forward with true version of the occurrence. In respect of the conversation between the parties, it is for the Court to presume from and out of certain basic facts. In this case, PW1 has stated that the occurrence went for about 20 minutes. The details of the wordy quarrel have not been stated by the prosecution. In this respect, the prosecution has not come forward with clean hands. Going by the natural human conduct, we are able to presume, as provided under Section 114 of the Indian Evidence Act, that in the said quarrel, the deceased would have provoked the accused and only out of the said provocation, the accused would have attacked the deceased. Though PW1 has not explicitly stated so, we find reasons to presume so. Thus, in our considered view, provoked by the deceased and having lost his self-control, the accused had attacked the deceased with an iron pipe. Thus, the act of the accused would squarely fall under exception one to Section 300 IPC. Thus, he is liable to be punished under Section 304(i) IPC. 11. Now, turning to the quantum of punishment, the accused has already divorced his wife and he has a big family to take care of. He is the sole breadwinner of the family. He has got no history of bad antecedent. After the occurrence also, he has not committed any crime. The occurrence had not happened out of premeditation. 11. Now, turning to the quantum of punishment, the accused has already divorced his wife and he has a big family to take care of. He is the sole breadwinner of the family. He has got no history of bad antecedent. After the occurrence also, he has not committed any crime. The occurrence had not happened out of premeditation. Having considered all these mitigating and aggravating circumstances, by way of striking a balance between these two, we deem it appropriate to impose a sentence of rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for four weeks. 12. In the result, this Criminal Appeal is partly allowed and the conviction and sentence imposed on the appellant/accused is set aside, instead he is convicted under Section 304(i) IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for four weeks. The bail bond, if any, executed by him shall stand terminated. The fine amount, if any, already paid shall be adjusted. 13. The trial Court is directed to take steps to secure the accused and to commit him in prison so as to serve out the remaining period of sentence. 14. The service rendered by Mr.J.M.Abdul Rahman, the learned Legal Aid Counsel for the appellant is appreciated. The Legal Services Authority is directed to pay his remuneration.