Ayyanar vs State by the Inspector of Police

M. Chockalingam, J.—Challenge is made to the Judgment of the learned Additional District and Sessions Judge, FTC-I, Tindivanam, made

in SC. No. 343/2008 whereby the accused stood charged, tried and found guilty for the offence u/s 302 IPC and awarded with life imprisonment

and a fine of Rs. 1,000/- in default to undergo six months simple imprisonment.

Short facts necessary for the disposal of the appeal can be stated as follows:

[a] The deceased Selvaraj is the native of Omandur village and the accused/appellant is the deceased''s younger brother''s son. Both the families of

the deceased and the accused are residents of the same place and were on inimical terms due to family matters and land issue. On 18.07.2008 at

about 9.00 p.m. when the deceased was sitting and chatting with P.Ws.1 and 2 in front of the house below the electrical lamp post, the accused

came there and attacked the deceased with a wooden log on the head and on hearing the distressing cry of the deceased, P.Ws. 3 to 10 chased

the accused and despite chasing, the accused could not be secured and the accused fled away from the scene of occurrence. Immediately,

P.W.11''s auto was engaged to take the deceased to the Government Hospital, Tindivanam. But, on the way, the deceased was found dead and

therefore, the dead body was brought back to the village.

[b] Thereafter, P.W.1 drafted a complaint under Ex.P.1, with the help of P.W.12, went to the respondent police at about 00.30 hours on

19.07.2008 and gave Ex.P.1 to P.W.23, the Sub Inspector of Police who was on duty at the relevant point of time. On the strength of Ex.P.1, a

case came to be registered in Cr. No. 236/2008 for the offence u/s 302 IPC and the Express FIR-Ex.P.16 was despatched to the court.

[c] P.W.27, the Inspector of Police of the respondent Police Station during the relevant point of time, received the copy of the FIR, took up the

investigation, went to the scene of occurrence and prepared Ex.P.2-Observation Mahazar and a rough sketch-Ex.P.22 in the presence of

witnesses and he also examined the witnesses and recorded their statements. The Investigating officer held inquest on the dead body of the

deceased from 01.30 a.m. to 3.30 a.m. in the presence of the witnesses and panchayatdars and prepared Ex.P.21-Inquest Report. He also

recovered M.O.7-blood stained earth, M.O.8-sample earth, M.O.3-blood stained Mat, M.O.4-blood stained shirt, M.O.5-blood stained

Baniyan, M.O.6-blood stained towel, M.O.1-blood stained wooden log under a cover of Mahazar-Ex.P.3 from the place of occurrence in the

presence of witnesses. He arranged for taking the photographs of the scene of occurrence and the photographs and negatives are marked as

M.O.9 series. P.W.27, the investigating officer also recovered M.O.2-blood stained dhoti of P.W.2 from the place of occurrence under a cover of

Mahazar Ex.P.4. He sent the dead body for postmortem along with a requisition to P.W.19-the doctor attached to the Government Hospital,

Tindivanam.

[d] P.W.19 conducted the postmortem on the dead body of the deceased and issued Ex.P.11, the Post Mortem Certificate wherein the doctor

had opined that the deceased would appear to have died of shock and hemorrhage due to head injury sustained by him.

[e] Pending investigation, the accused was arrested on 20.07.2008 at about 9.00 a.m. and the accused came forward voluntarily to give his

confession statement in the presence of the Village Administrative Officer and the village assistant, the admissible part of which is marked as

Ex.P.17 pursuant to which M.O.10-blood stained Banian was recovered under a cover of Mahazar Ex.P.18 in the presence of witnesses. All the

material objects recovered from the scene of occurrence, accused and from the dead body of the deceased were all subjected to chemical analysis

which resulted in 2 reports, viz., Exs.P.5 and 8, viz., Chemical report and Finger Print report respectively.

[f] On completion of investigation and filing of the final report, the case was committed to court of sessions; necessary charges were framed and in

order to substantiate the charges, the prosecution examined 27 witnesses [P.Ws.1 to 27], marked 25 exhibits [Exs.P.1 to 25] and produced 10

material objects [M.Os.1 to 10].

When the accused was questioned u/s 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses, he

denied them as false and no defence witness was examined on the side of the accused. Hearing the arguments advanced on either side and also

considering the materials available on record, the trial court took a view that the prosecution has proved its case beyond reasonable doubt against

the accused and thus, rendered the judgment of conviction. As against the said conviction and sentence, the accused has preferred the above

appeal.

Advancing the arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, P.Ws.1 and 2, who are the

eyewitnesses to the occurrence, are the friends of the deceased Selvaraj and hence, their evidence cannot be believed as they are interested in the

deceased and there are some discrepancies found in their evidence. Learned Counsel would further add that the motive put forward by the

prosecution that the accused was on inimical terms with the deceased family due to land dispute, was a false one. Added further, according to the

investigating officer, the weapon of crime, viz., the wooden log was actually recovered from the place of occurrence. Had it been true that the

accused had attacked the deceased with the wooden log, there was no chance for the accused to leave the wooden log in the scene and run away

from the scene of occurrence. The medical opinion canvassed through P.W.19, the doctor who conducted the postmortem was also not consistent

with the ocular testimony. It is further contended that the voluntary confessional statement and the pursuant recovery of the material object,

M.O.10 after the arrest of the accused, were all cooked up affairs in order to strengthen the prosecution case and thus, the prosecution has

miserably failed to prove its case beyond reasonable doubt and the trial court has taken an erroneous view in convicting the accused for the

offence u/s 302 IPC.

In the second line of argument, the learned Counsel for the appellant contended that even assuming that the prosecution is said to have proved

the factual position that it was the accused who attacked the deceased with wooden log on his head and caused his death, the said act of the

accused would not attract the penal provision of murder. Admittedly, the accused was not armed with any weapon at the time of occurrence and

he took the wooden log from the scene which is candidly admitted by P.W.27, the investigating officer at the time of his evidence before the court.

Learned Counsel also drew the attention of this Court to the confessional statement of the accused wherein also it was mentioned that the accused

took the wooden log from the scene. Under such circumstances, it would be quite clear that there should have been some quarrel preceding the

occurrence. Otherwise, there was no need for the accused to attack the deceased with wooden log and hence, he had no intention to cause the

death of the deceased and the act of the accused would not attract the penal provision of murder and it would fall under the exception to the

definition of murder and this legal position has got to be considered by this Court, if the court takes the view that it was the accused who attacked

the deceased with wooden log on his head and caused his death.

Heard the learned Additional Public Prosecutor on the above contentions and the court paid its anxious consideration on the submissions made

on either side.

It is not in controversy that one Selvaraj, following an incident that had taken place at about 21.00 hours on 18.07.2008, succumbed to the

injuries within a short span of time. Following the registration of a case in Cr. No. 236/2008 for the offence u/s 302 IPC by P.W.23, the Sub-

Inspector of Police, the investigation was taken up by P.W.27 the Inspector of Police and an Inquest report was prepared in the presence of

witnesses and panchayatdars. Thereafter, the dead body was subjected to postmortem and the same was conducted by P.W.19 who has given his

medical opinion as a witness before the court and also through the contents of the Post Mortem Certificate, Ex.P.11 that the deceased would

appear to have died of shock and hemorrhage due to head injury sustained by him and the fact that the deceased died out of homicidal violence

was never disputed by the appellant before the trial court and the trial court did not feel any impediment in recording so and it has got to be

affirmed.

In order to substantiate that it was the accused who caused the death of the deceased, the prosecution marched P.Ws.1 and 2 as eyewitnesses.

It is true that P.Ws.1 and 2 were the friends of the deceased Selvaraj. But on that factor alone, their evidence cannot be rejected in toto. P.Ws.1

and 2 have spoken in one voice consistently that when they were sitting under the electrical lamp post along with the deceased and chatting, the

accused came there and attacked the deceased with wooden log on the head and fled away from the scene and P.W.11''s auto was engaged and

the deceased was taken to the Government Hospital, Tindivanam and on the way to hospital, the deceased died. The evidence of P.Ws.1 and 2,

despite cross-examination, remained unshaken and if their evidence is scrutinised thoroughly, this Court is of the considered view that the evidence

of P.Ws.1 and 2 has got to be accepted since it is cogent, natural and trustworthy. That apart, the ocular testimony projected through the evidence

of P.Ws.1 and 2 stood fully corroborated by the evidence of the doctor P.W.19, who conducted postmortem.

The added circumstance which was against the appellant/accused was the recovery of M.O.1-blood stained wooden log from the scene of

occurrence in the presence of the witnesses, under a cover of Mahazar. Yet another circumstance against the accused was the confessional

statement of the accused pursuant to which M.O.10-blood stained baniyan was recovered in the presence of witnesses under a cover of Mahazar.

All would go to show that the prosecution had sufficient evidence before the trial court to prove the guilt of the accused and apart from that, the

accused was unable to bring to the notice of the court any doubt much less reasonable doubt against the prosecution case. Under such

circumstances, the prosecution has proved by adducing sufficient evidence that it was the accused who attacked the deceased with wooden log

and caused his death and it has got to be recorded so.

Insofar as the second line of contention of the learned Counsel for the appellant that the act of the accused would not attract the penal

provision of murder since he had no intention to cause the death of the deceased, this Court is unable to see any force in the said contention. The

contention of the learned Counsel for the appellant that the accused actually picked up the wooden log from the nearby place and attacked the

deceased and hence, the attack should have been preceded by a quarrel or wordy altercation between the parties and as such, the act of accused

would fall short of the definition of murder, cannot be accepted by this Court. It is an admitted position that both the deceased and the accused

families were on the warpath in the past and on the date of occurrence, the deceased along with P.Ws.1 and 2 were sitting under the electrical

lamp post and chatting with each other and at that time the occurrence had taken place. P.Ws.1 and 2 have been cross-examined at length and not

even one suggestion was made to them whether any wordy altercation preceded the actual occurrence. Even in the confessional statement, the

accused has not stated that there was wordy altercation before the attack on the deceased. Merely because of the fact that the accused who came

there, took the wooden log which was lying aside, it cannot be presumed that there could have been a quarrel or wordy altercation between the

parties. Hence, this Court is of the considered view that the act of the accused in attacking the deceased with wooden log on his head would, in the

ordinary course of event, cause death immediately. Under such circumstances, the act of the accused cannot but be termed only as murder and the

trial court was perfectly correct in recording so. This Court is unable to see anything to interfere with the Judgment of the trial court either factually

or legally.

Accordingly, the criminal appeal fails and the same is dismissed and the judgment of conviction and sentence imposed on the appellant in SC.

No. 343/2008 dated 22.04.2009 by the learned Additional District and Sessions Judge, FTC-I, Tindivanam is confirmed.