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2015 DIGILAW 3268 (MAD)

Sangilipandi v. State of Tamil Nadu

2015-10-07

S.NAGAMUTHU, V.S.RAVI

body2015
JUDGMENT : S. NAGAMUTHU, J. The appellant is the sole accused in S.C.No.125 of 2011 on the file of the Additional Sessions cum Fast Track Court No. II, Tuticorin. He stood charged for the offence under Section 302 IPC. By judgment dated 12.09.2011, the trial Court 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 said conviction and sentence, the appellant is before this Court with this appeal. 2. The case of the prosecution in brief is as follows; (a) The deceased in this case was one Mr. Velusamy. He was a resident of Therkku Konar Kottai Village in Kovilpatti Taluk. PW1 is the wife of the deceased. They had seven children. All the children were already married. One of the daughters of the deceased and PW1 was one Mrs. Sangiliammal. Mrs. Sangiliammal's daughter is PW2 -Mrs. Mariammal. Mrs. Sangiliammal and PW2 (Mrs. Mariammal) were residing along with deceased. PW2 – Mrs. Mariammal was given in marriage to the accused. After the marriage, there arose frequent quarrels between the accused and PW2. PW2, therefore, came to the house of the deceased and stayed back. After two days of her return to the house of the deceased, the accused came to the house of the deceased, in order to take back his wife viz., PW2. At that time, the accused was fully drunk. He developed quarrel with the deceased. The deceased told him that he would send back PW2 soon. Not having been satisfied with the said statement, the accused shouted at him that one day or the other, he would kill him. The neighbours came there and they separated them. (b) After the above incident, the deceased and PW2 had made a complaint to All Women Police Station, Kovilpatti, in respect of the above occurrence. At the Police Station, the accused and PW2 were summoned and the matter was enquired. During the talks, the accused was told by the deceased that since PW2 was unwell, she would return to the matrimonial home after three months. The deceased assured the Police and the accused that he would send back PW2 after three months as soon as she became alright. Thereafter, on the night intervening 27.09.2010 and 28.09.2010, the deceased and PWs.1 to 3 were in their house. The deceased assured the Police and the accused that he would send back PW2 after three months as soon as she became alright. Thereafter, on the night intervening 27.09.2010 and 28.09.2010, the deceased and PWs.1 to 3 were in their house. It was the practice of the deceased to sleep on the pial of the house and to go to the shop of PW7 every day early in the morning for the purpose of purchasing milk. PWs.1 to 3 were sleeping inside the house. (c) Around 3.00 a.m. on 28.09.2010, PWs.1 to 3 were heard alarm raised by the deceased. They opened the door and came out to the pial, where they found the accused standing with an aruval. He was actually found cutting the deceased repeatedly. PWs.1 to 3 were helpless. The deceased fell down in a pool of blood. The accused ran away from the place of occurrence with aruval. (d) PW7, since did not find the accused in his usual course to come for purchasing milk, incidentally, came to the house of the deceased. He came to know about the occurrence. Then, he informed the Police about the occurrence over phone. (e) PW12 -the then Sub Inspector of Police, Kayatharu Police Station received the said intimation. Actually, he was on night rounds. At 4.15 a.m. he reached the house of the deceased. PW1 gave oral statement to PW12. PW12 reduced the same to writing and obtained her signature. Ex.P1 is the said complaint. On returning to the Police Station, he registered a case in Crime No.221 of 2010 under Section 302 IPC, at 6.00 a.m. Ex.P13 is the FIR. Then, he forwarded both the documents to the Court through a Constable which reached the hands of the learned Magistrate at 1.00 p.m. on 28.09.2010. He then handed over the Case Diary to the Inspector of Police for investigation. (f) PW14 -the then Inspector of Police, Kayatharu Police Station took up the case for investigation. He proceeded to the place of occurrence and prepared an observation mahazar and a rough sketch at 7.15 a.m. in the presence of PW4 and another witness. He, then, recovered bloodstained earth and sample earth from the place of occurrence under a mahazar. He conducted inquest on the body of the deceased and then, forwarded the body for postmortem. (g) PW5 – Dr. He, then, recovered bloodstained earth and sample earth from the place of occurrence under a mahazar. He conducted inquest on the body of the deceased and then, forwarded the body for postmortem. (g) PW5 – Dr. Balaji conducted autopsy on the body of the deceased on 28.09.2010 at 1.20 p.m. He found the following injuries: External injuries: 1) Lacerated injury 6 x 3 x bone depth cm is present above the left ear lobe. 2) Lacerated injury with 10 x 4 cm x bone depth over left shoulder with bone exposed. 3) 36 cm x 16 cm x bone depth extending from right angle of mandible to left jaw. 4) Blood vessels, vertebra and spinal cord all severed with only anterior fold of skin intact. 5) 6 x 2 cm bone depth present over the left occipital region. 6) Lacerated wound 4 x 2 x 1 cm from below the right curial fossa extending to above the right wrist. 7)3 x 1 x 1 cm lacerated wound over anterior aspect of left forearm. 8) Lacerated injury 3 x 2 x 1 cm over right thumb. 9) Lacerated wound 3 x 2 x 1 cm over the right pinna, eyelids closed, tongue with the mouth, teeth. Internal examination: On opening of thorax, ribs normal, heart pale, lungs pale. On opening of neck: Hyoid bone intact. Opening of abdomen: Stomach contains 200 ml of partially digested with liquid present liver, spleen – pale, both kidneys are pale, small intestine empty – large intestine distended with gas, bladder empty. On opening of Head: Skull bone have no fracture, membranes intact, brain pale the general appearance do takes the Police report.” Ex.P5 is the Postmortem Certificate. He gave opinion that the injuries 1 to 5 were grievous hurt and the deceased would appear to have died of shock and haemorrhage due to the injuries. (h) During the course of investigation, PW14 arrested the accused on 29.09.2010 at 6.30 a.m. at Settikurichi Bus stop in the presence of PW6 and another witness. On such arrest, he gave a voluntary confession, in which he disclosed the place where he had hidden aruval. In pursuance of the same, he took PW14, PW6 and another witness to the backside of Vadakku Konar Kottai Ration Shop and from a bush, he produced MO.1 aruval. PW14 recovered the same under mahazar. On such arrest, he gave a voluntary confession, in which he disclosed the place where he had hidden aruval. In pursuance of the same, he took PW14, PW6 and another witness to the backside of Vadakku Konar Kottai Ration Shop and from a bush, he produced MO.1 aruval. PW14 recovered the same under mahazar. On returning to the Police Station, he forwarded the accused to the Court and forwarded the material objects also to the Court. Then, he made request to the Court for forwarding the material objects for chemical examination. The report revealed that there was human blood on all the material objects, including aruval (MO.1). On completing the investigation, he laid a charge sheet against the accused. (i) Based on the above materials, the trial Court framed a lone charge under Section 302 IPC against the accused. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 14 witnesses were examined and 17 documents and 8 material objects were marked. (j) Out of the said witnesses, PW1 is the wife of the deceased. PW2 is the wife of the accused and granddaughter of the deceased. PW3 is the daughter-in-law of the deceased. They have vividly spoken about the entire occurrence as eyewitnesses. PW4 has spoken about the observation mahazar and rough sketch prepared and the recovery of material objects from the place of occurrence. PW5 – Dr. Balaji has spoken about the postmortem conducted and his final opinion regarding the cause of death of the deceased. PW6 has spoken about the arrest of the accused, the disclosure statement made by him and the consequential recovery of MO.1 aruval at his instance. PW7 has turned hostile and he has not supported the case of the prosecution in any manner. PW8 is the constable, who has stated that at 4.00 a.m. on 28.09.2010, he received a phone message from PW7 about the above occurrence. Then, according to him, he informed PW12 -the then Sub Inspector of Police, who was on night rounds. (k) PW9 has spoken about the fact that he carried the FIR from the Police Station and handed over the same to the learned Magistrate at 1.00 p.m. PW10 has spoken about the fact that he carried the dead body from the place of occurrence to the hospital for postmortem. (k) PW9 has spoken about the fact that he carried the FIR from the Police Station and handed over the same to the learned Magistrate at 1.00 p.m. PW10 has spoken about the fact that he carried the dead body from the place of occurrence to the hospital for postmortem. PW11 is the Head Clerk of the learned Magistrate Court, who has stated that he forwarded the material objects for chemical examination on the orders of the learned Magistrate. PW12 has stated that on receiving the phone message from PW8, he went to the place of occurrence and obtained a complaint from PW1 and on returning to the Police Station, he registered a case against the accused. PW13 is an official from the Tamil Nadu Electricity Board, who has stated that there was no electricity failure on the date of occurrence at the place of occurrence. PW14 has spoken about the investigation done. (l) 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. The defence of the accused was total denial. (m) Having considered all the above materials, the trial Court convicted the accused under Section 302 IPC and accordingly, punished him. That is how he is before this Court with this appeal. 3. We have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State. We have also perused the records carefully. 4. The learned counsel appearing for the appellant would submit that in this case, the FIR, which is the foundation for the entire case, is a doubtful document. According to him, though it is stated that the occurrence was at 3.00 a.m. and though it is stated that FIR was registered at 6.00 a.m., the FIR had reached the hands of the learned Magistrate only at 1.00 p.m. for which absolutely there is no explanation. The learned counsel would further submit that the evidence of PW7 also plays a vital role in this case. According to him, PW7 though has turned hostile, on that score, his evidence cannot be rejected in toto. There are certain portions of his evidence upon which reliance can be placed, the learned counsel submitted. The learned counsel would further submit that the evidence of PW7 also plays a vital role in this case. According to him, PW7 though has turned hostile, on that score, his evidence cannot be rejected in toto. There are certain portions of his evidence upon which reliance can be placed, the learned counsel submitted. He would further submit that PW7 has stated that in the usual course, the deceased would have come to his shop at 3.00 a.m. for the purpose of purchasing milk and since he has not come, according to PW7, he went in search of the deceased, where he found the dead body of the deceased. Then, he informed the Police about the occurrence over phone. Referring to the evidence of PW7, the learned counsel would submit that had it been true that PWs.1 to 3 had seen the occurrence, they would have informed the same to the Police and PW7. But, PW7 has stated that he only saw the deceased lying dead for the first time. From out of his evidence, according to the learned counsel, the case of the prosecution that PWs.1 to 3 had witnessed the occurrence cannot be believed. 5. The learned counsel would next contend that it is in evidence that the relatives had come to the place of occurrence soon after the dead body was found and it was only thereafter the FIR would have come into being and that is the reason why, there is enormous delay in FIR reaching the hands of the learned Magistrate. He would further submit that though it is the positive case of the prosecution that the accused cut the deceased with aruval, which is a sharp edged weapon, repeatedly on his body, all the injuries found on the body of the deceased are all lacerated injuries, which would not have been caused with the weapon like MO.1 aruval. Thus, according to the learned counsel, the medical evidence clearly contradicts the eyewitnesses account. The learned counsel would next contend that the deceased had number of other enemies and when he was sleeping alone on the pial of the house, some body would have committed the murder of the deceased. He would further submit that the place of occurrence is the new house of the deceased, whereas PWs.1 to 3 were sleeping in the old house. He would further submit that the place of occurrence is the new house of the deceased, whereas PWs.1 to 3 were sleeping in the old house. Thus, according to the learned counsel for the appellant, the prosecution has failed to prove the case beyond reasonable doubts and therefore, the appellant is entitled for acquittal. 6. The learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, the occurrence had taken place at 3.00 a.m. and the FIR came to be registered at 6.00 a.m., in which absolutely there is no delay. According to the learned Additional Public Prosecutor, this would go to vouch for the truth of the allegation made therein. So far as the delay in forwarding the FIR is concerned, according to the learned Additional Public Prosecutor, it is immaterial. He would further submit that going by the close relationship between the parties, there would have been no necessity for falsely implicating this accused by PW1. Thus, according to him, the delay in forwarding the FIR to the Court, though has not been explained away, has not caused any dent in the case of the prosecution. He would further submit that though the Doctor had opined the injuries as lacerated injuries, he has, however, submitted during chief examination itself that the injuries 1 to 5 were grievous injuries and they would have been caused by the weapon like MO.1 aruval. Thus, according to him, there is no material contradiction between the medical evidence and the eyewitnesses account. He would further submit that PWs.1 to 3 were all residing along with deceased. Therefore, they are all natural witnesses. Thus, according to the learned Additional Public Prosecutor, there is no reason to reject the evidences of PWs.1 to 3. Therefore, according to the learned Additional Public Prosecutor, the conviction and sentence imposed by the trial Court does not require any interference at the hands of this Court. 7. We have considered the above submissions. 8. It is the case of the prosecution that the alleged occurrence was at 3.00 a.m. The records reveal that the FIR was registered at 6.00 a.m. and the same had reached the hands of the learned Magistrate at 1.00 p.m. Of-course, there is enormous delay in forwarding the FIR to the Court. 7. We have considered the above submissions. 8. It is the case of the prosecution that the alleged occurrence was at 3.00 a.m. The records reveal that the FIR was registered at 6.00 a.m. and the same had reached the hands of the learned Magistrate at 1.00 p.m. Of-course, there is enormous delay in forwarding the FIR to the Court. But, the question is as to whether on account of the said unexplained delay, the entire case of the prosecution should be doubted and thrown out. In our considered view, it is not so in this case because of the enormous evidence available against the accused to clinchingly prove his guilt. 9. PW1 is the wife, PW2 is the granddaughter and PW3 is the daughter-in-law of the deceased. They were all residing under the same roof. The deceased was sleeping on the pial of the house as per his usual practice. Of-course, it is true that PWs.1 to 3 were inside the house and the door was also closed. But, it is stated by PWs.1 to 3 that they heard the cry of the deceased. Going by the number of injuries found on the deceased, certainly as soon as one or two blows were inflicted on the deceased, the deceased would be quite naturally cried for help. This would have awakened PWs.1 to 3, who were sleeping inside the house. Therefore, it is quite natural for PWs.1 to 3 to come out from the house by opening the door. Thus, the presence of PWs.1 to 3 at the place of occurrence cannot be doubted at all. Further, they have categorically stated that at that time, they found the accused cutting the deceased and after seeing them and after threatening them, the accused ran away from the place of occurrence with the weapon. Though these three witnesses have been cross examined at length, nothing has been elicited to doubt their veracity. Thus, we do not find any reason to reject the evidences of PWs.1 to 3. 10. Now, turning to the argument of the learned counsel for the appellant based on the evidence of PW7, first of all PW7 has turned hostile and he has not supported the case of the prosecution in any manner. As rightly argued by the learned counsel for the appellant, simply because a witness has turned hostile his evidence in its entirety need not be rejected. As rightly argued by the learned counsel for the appellant, simply because a witness has turned hostile his evidence in its entirety need not be rejected. If any of the portion of his evidence is believable and trustworthy, certainly, this Court can act upon the same. But, here, in this case, a perusal of the entire evidence of PW7 would go to show that he is not trustworthy at all. Though he happens to be a close relative of the deceased, since he also happens to be a close relative of the accused, probably with a view to save the accused from the clutches of law, he would have turned hostile. Therefore, no portion of his evidence can be relied on by this Court. Thus, we reject the evidence of PW7 in toto. 11. Now, turning to the medical evidence, it is of-course true that the doctor has stated that the injuries found on the dead body were all lacerated injuries. But, the difference between a lacerated injury and a cut injury is so thin. If the doctor is an experienced doctor in the field of forensic medicine, he would easily find the difference between a lacerated injury and a cut injury. Many a times due to inexperience in the field of forensic medicine, some doctors struggle to find the difference between a lacerated injury and a cut injury. Here, in this case, though the doctor has stated that the injuries were lacerated injuries in the postmortem certificate, he has categorically stated in his chief examination that the injury Nos.1 to 5 were grievous injuries and they would have been caused by a sharp edged weapon like MO.1 aruval. There is no reason to reject this evidence. Thus, in our considered view, the medical evidence clearly corroborates the eyewitness account of PWs.1 to 3. Apart from that, the recovery of MO. 1 – aruval with bloodstain at the instance of the accused i.e., on his disclosure statement, also further strengthens the case of the prosecution. Thus, from these evidences we are of the view that the prosecution has clearly proved that it was this accused, who caused the injuries on the deceased, resulting in his death. 12. The learned counsel for the appellant would further submit that the deceased had lot of other enemies and somebody would have committed the murder. Thus, from these evidences we are of the view that the prosecution has clearly proved that it was this accused, who caused the injuries on the deceased, resulting in his death. 12. The learned counsel for the appellant would further submit that the deceased had lot of other enemies and somebody would have committed the murder. He would further submit that the delay in FIR assumes much importance, because the FIR would come into being after the arrival of the relatives so as to implicate the accused falsely as the occurrence was not noticed by anybody. Though, these arguments appear to be attractive, in our considered view, the same deserve to be rejected as it is nothing but a hollow argument. 13. While appreciating the evidence, the Court cannot ignore the natural human conduct of the witnesses, which is so explicitly made permissible under Section 114 of the Indian Evidence Act. Section 3 of the Indian Evidence Act also states that a fact is said to be proved, if after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In the instant case, such supposition that it was this accused who had committed the murder of the deceased, is found on certain facts, more particularly on the natural human conduct. There was no strong enmity between the family of the deceased and the accused. It is in the evidence of PWs.1 and 2 that when the accused came to the house of the deceased, to take back his wife viz., PW2, the deceased told him that he would send her back to home soon. Even in the Police Station, the deceased told the accused that he would send his wife soon to the matrimonial home. But, it is in the evidence of PW1 that even thereafter the accused came to the house in a drunken state and shouted at the deceased. Therefore, the accused alone had behaved in aggressive manner. Had it been true that PWs.1 to 3 had not seen the accused cutting the deceased, we do not find any reason for them to behave in a manner so as to falsely implicate the accused and to put the life of the young woman viz., PW2 in jeopardy. 14. Therefore, the accused alone had behaved in aggressive manner. Had it been true that PWs.1 to 3 had not seen the accused cutting the deceased, we do not find any reason for them to behave in a manner so as to falsely implicate the accused and to put the life of the young woman viz., PW2 in jeopardy. 14. Going by these backgrounds, human conduct and all other circumstances, we state that our prudence impels us to hold that it was this accused who caused the death of the deceased by cutting him indiscriminately. The medical evidence clearly establishes that the death was due to injuries. It cannot be said that the accused did not cause the death of the deceased. Going by the nature of the weapon used and the number of injuries, situs of the injuries and all the other evidences, we hold that the accused had caused the injuries on the body of the deceased only with the intention to cause the death. Thus, the act of the accused will clearly fall within the first limb of Section 300 IPC. There is no material even to remotely infer that the act of the accused will fall under any one of the exceptions to Section 300 IPC. Thus, we hold that the prosecution has proved that the accused had committed the murder of the deceased and he is punishable under Section 302 IPC. 15. Now, turning to the quantum of punishment, the trial Court imposed only minimum punishment which also does not warrant any interference at the hands of this Court. 16. In the result, this Criminal Appeal fails and accordingly, the same is dismissed. The conviction and sentence imposed by the trial Court against the appellant/accused in S.C.No.125 of 2011 is confirmed. The bail bond, if any, executed by him shall stand terminated. 17. The trial Court is directed to take steps to secure the appellant/accused and to commit him in prison so as to serve out the remaining period of sentence.