Chelliah vs State

M. Chockalingam, J.—Challenge is made to a Judgment of the Principal Sessions Division, Madurai, made in S.C. No. 265 of 2009, dated

08.02.2010, whereby the appellant/sole accused stood charged, tried and found guilty on the charge of murder and awarded life imprisonment

along with fine and default sentence.

The short facts necessary for the disposal of the prosecution case can be stated as follows:

a) P.W.1 is the brother of P.W.2. P.W.1 is a resident of Vittalpatti. P.W.2 was given in marriage to the accused/appellant, who was a native of

Anaikaraipatti, 3 kilometers away from Vittalpatti. The accused/appellant is the son of the deceased. The accused is a drunkard and he used to

often quarrel with his wife, P.W.2 in that mood and attacked her number of times in the past. P.W.2, who could not tolerate such kind of

treatment, left Anaikaraipatti and was staying in her parental home at Vittalpatti. The deceased lost his wife long back and hence, he had no one to

take care of him. In that view, P.W.2 used to prepare food at Anaikaraipatti and used to take and give it to her father-in-law at Vittalpatti. At

about 5.00 p.m., on the date of occurrence, that was on 21.12.2008, the accused came to Vittalpatti and threatened her that if she gave food to

his father, he would kill both. At about 8.15 p.m., when P.W.1 came back, P.W.2 informed him. Thereafter, accompanied by P.W.1, P.W.2 took

food to her father-in-law and proceeded to Anaikaraipatti. When they were just nearing the house, they heard the distressing cry of the deceased

from the house. Immediately, they ran to the house and found the accused dropping a grinding stone on the head of the deceased. On seeing them,

the accused ran away from the place of occurrence. When they raised alarm, the neighbors gathered. Then, they went near the body of the

deceased and found him dead.

b) P.W.1, immediately proceeded to the respondent police, where P.W.10, Sub-Inspector of Police was on duty and he gave a complaint Ex.P.1.

On the strength of Ex.P1, a case came to be registered in Crime No. 62 of 2008 u/s 302 IPC and the express First Information Report, Ex.P9

was despatched to the Judicial Magistrate, Usilampatti.

c) On receipt of the copy of the F.I.R., P.W.14, Inspector of Police of the Circle, took up the investigation, proceeded to the place of occurrence,

made an inspection in the presence of two witnesses and prepared Ex.P.5, the observation mahazar and Ex.P.14, the rough sketch and also

recovered M.Os.1 and 3 to 5, Grinding Stone, Bloodstained Earth, Sample Earth and Towel respectively from the place of occurrence under a

cover of Mahazar Ex.P.14. Then, he examined the witnesses and recorded their statements. He conducted inquest on the dead body of the

deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.15, the inquest report.

d) Then, the dead body of the deceased was sent to the hospital, for the purpose of autopsy. P.W.6, the Doctor, attached to Thirumangalam

Government Hospital, on receipt of the requisition Ex.P.9, has conducted autopsy on the dead body of the deceased and issued Ex.P.7, the post-

mortem certificate, wherein he has narrated the injuries and has opined that the deceased would appear to have died of cardio respiratory arrest

due to vital organ (head and brain) injury caused 12 to 15 hours prior to autopsy.

e) Pending investigation, the Investigator arrested the Accused on 22.12.2008 at about 4.00 p.m. and he came forward to give a confessional

statement voluntarily in the presence of P.Ws.4 and 7 and the same was recorded. The admissible part of the confessional statement of accused

was marked as Ex.P.16. Thereupon, he produced M.O.2, knife and the same was recovered in the presence of the said witnesses under a cover

of mahazar Ex.P.4. Then, he was sent for judicial remand.

f) Then, the material objects recovered from the place of occurrence, from the dead body of the deceased and from the accused were subjected

to chemical analysis by the forensic department on a requisition made by the Investigating Officer through the concerned Judicial Magistrate.

Following the same, the Chemical analyst''s report, Ex.P.12 and Serologist''s report Ex.P.13 were received by the Court.

g) On completion of the investigation, the Investigating Officer has filed the final report before the concerned court, which in turn has committed the

case to the court of sessions and necessary charge was framed and the case was taken up for trial.

h) In order to substantiate the charge, at the time of trial, the prosecution examined 15 witnesses and relied on 16 exhibits and 5 material objects.

On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 Cr.P.C. as to the incriminating circumstances

found in the evidence of prosecution witnesses. He denied them as false. On the side of the defence, neither a witness was examined nor a

document was marked.

i) After hearing the arguments of the learned Counsel and looking into the materials available, the trial Court took the view that the prosecution has

proved the case of murder and found the accused guilty and awarded sentence as referred to above. Under these circumstances, this criminal

appeal has arisen before this Court at the instance of the accused/appellant.

Advancing arguments on behalf of the appellant, the learned Counsel Mr. D. Malaichamy would submit that in the instant case, the specific

charge levelled against the appellant was that he murdered his father at about 10.00 p.m. on 21.12.2008, in his residence and the same was

witnessed by P.Ws.1 and 2. Admittedly, P.W.1 is the brother of P.W.2. P.W.2 was given in marriage to the accused/appellant and due to the

strained relationship, P.W.2 leaving her husband at Anaikaraipatti was living in P.W.1''s house at Vittalpatti during the relevant time. It is also an

admitted fact that the deceased was actually living at his residence at Anaikaraipatti, which is situate 3 kilometers away from Vittalpatti. Once

P.W.2 has been living at Vittalpatti in the house of P.W.1 for a long time and it is also admitted by her that she used to prepare food and deliver

the same to her father-in-law at Anaikaraipatti, which is situate about 3 kilometers away from Vittalpatti, the same could not be believed.

She has also candidly admitted that usually she used to go to Anaikaraipatti alone to give food to her father-in-law, and if to be so, there is no

need for herself to take P.W.1 also at the time of occurrence, and thus it would be quite clear that P.W.1 was an introduced witness in order to

give evidence as if an eyewitness. In so far as the evidence of P.Ws.1 and 2 as to the occurrence is concerned, P.W.2 has categorically stated that

when they went there, the occurrence was over, and thus found the accused/appellant running from the house, and under such circumstances, the

evidence of P.W.1 that when they went there, they found the accused dashing a grinding stone on the head of the deceased cannot be a true

version.

Apart from that, the Investigator would claim that the knife was also recovered from him, but, there is no whisper in the evidence of P.Ws.1 and

2 that any injury was caused on the deceased with a knife. There are five injuries noted in the postmortem certificate, but, P.Ws.1 and 2 have

spoken about only one injury and in respect of the remaining injuries, they could not account for the same.

The learned Counsel, further added that from the evidence of P.Ws.1 and 2, it is quite clear that there was no proper light at all. Though the light

was mentioned in the Rough Sketch, there is no light mentioned in the Observation Mahazar. Hence, P.Ws.1 and 2 could not have seen the

occurrence at all.

According to the prosecution, the occurrence has taken place at 10.00 p.m. A complaint was given at 1.00 a.m. to the respondent police

station, which is situate 4 kilometers away from the place of occurrence. Thus, there was a delay of about 3 hours, which remained unexplained.

Added further, the learned Counsel that the First Information Report has reached Judicial Magistrate at 6.15 a.m. and that delay has not been

explained.

The learned Counsel would further add that according to P.W.1, the police came to the spot within an hour from the time of occurrence. On the

contrary, P.W.10 has stated that on coming to know about the occurrence, on intimation, he went to the police station and a complaint was given

by P.W.1 and thus, there are inconsistencies, which cast a doubt whether the First Information Report come into existence as put forth by the

prosecution. The prosecution had altogether failed to prove the case. Since it was a case of patricide as put forth by the prosecution, the trial Court

was carried away by the same. There was lack of evidence and the trial Court has taken an erroneous view and hence, the judgment has got to be

set aside.

Added further, in the second line of argument, the learned Counsel that the act of the accused was neither intentional nor premeditated, but due

to sustained provocation. It is an admitted position that P.W.2, the wife of the accused, has deserted her husband and was not preparing food for

him. On the contrary she has prepared food for her father-in-law. Hence, there was a quarrel initiated at Vittalpatti between the accused and his

wife in the evening hours and following the same, the occurrence had taken place at about 10.00 p.m. Hence, it is an act only due to sudden

provocation and it would not attract the penal provision of murder and this has got to be considered by the Court.

The court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions

made, and also scrutinized the materials available.

It is not in controversy that following the incident that had taken place at 10.00 p.m., on 21.12.2008 and following the inquest, the dead body

was subjected to postmortem by P.W.6 Doctor, who has categorically opined that he died out of cardio respiratory arrest due to vital organ (head

and brain) injury. The fact that he died out of homicidal violence and the cause of death as put forth by the prosecution were never disputed by the

appellant/accused before the trial Court. Hence, no impediment was felt by the trial Court in recording so.

In order to substantiate that it was the accused who attacked the deceased at the time of occurrence and caused his death instantaneously, the

prosecution has examined two witnesses P.Ws.1 and 2 as eyewitnesses. It is true that P.W.1 is the brother of P.W.2. During the relevant time, due

to the strained relationship with her husband, P.W.2 was living in the house of P.W.1 situated at Vittalpatti. It is also an admitted position that the

deceased was living at Anaikaraipatti. P.W.1 has categorically stated that since there is no one to care for her father-in-law, she used to prepare

food from Vittalpatti and deliver the same at his place. On the evening hours of 21.12.2008, the accused came to Vittalpatti and threatened P.W.1

that she should not take food to his father. Hence, on the day, when she went to Anaikaraipatti, she took her brother, P.W.1 also, having suspicion

over the conduct of the accused.

The learned Counsel for the appellant brought to the notice of the Court, some discrepancies in the evidence of P.Ws.1 and 2. A reading of

the evidence of P.Ws.1 and 2 would clearly indicate that in suspicion, they went near the house and found the accused just coming out of the

house. Both of them have categorically stated that they heard the distressing cry of the accused, and they went there, and the only person inside the

house was the father-in-law of P.W.2, and at that time, the accused/appellant was running out of the house. They found inside the house the dead

body of Sembattayan @ Gurusamy with grievous injuries on the head and different parts of the body. The contention put forth by the learned

Counsel for the appellant that they could not have seen the occurrence cannot be countenanced. While there was only one person inside the house,

namely the deceased, and when P.Ws.1 and 2 went near the house, they found the accused/appellant running out of the house it would clearly

indicate that except the accused no one could have committed the crime. Added circumstance is the recovery of knife, the weapon of crime, which

would be pointing to the nexus of the crime with the accused and thus, in the instant case the prosecution has brought home the guilt of the

accused.

The learned Counsel for the appellant would submit that there was some delay in lodging the complaint. The same cannot be countenanced.

The occurrence had taken place at about 10.00 p.m. in an interior village Anaikaraipatti and the police Station is situated 4 kilometers away from

the place of occurrence. Thus, consumption of 3 hours should have taken place in the normal course and actually the First Information Report also

has reached the Judicial Magistrate, the very dawn of the day. All would clearly indicate that the averments found in Ex.P.1 report are true. Under

such circumstances, the prosecution has brought forth suffice evidence in order to record a finding that it was the accused, who attacked his father

and caused his death.

Insofar as the second line of argument is concerned, the Court is unable see any force in the contention put forth. According to P.W.2, when

she was at her brother''s house at Vittalpatti, the accused came in the evening and threatened her that she should not take food to his father and

therefore, she was accompanied by her brother P.W.1 to take food to her father-in-law, who was actually residing at Anaikaraipatti. At this

juncture, it is pertinent to point out that the contention put forth by the learned Counsel for the appellant that the appellant/accused was provoked

cannot be accepted at all for the reason that there was nothing to provoke him. If really the accused was provoked by the conduct of his wife, he

should have attacked her, but, not his father, who has nothing to do at all and who was almost aged 70 and was living alone. Without any reason,

whatsoever the accused has attacked his father with a grinding stone and also with a knife and caused the patricide, which, in the considered

opinion of the Court, is a heinies crime. It would clearly speak the intention of the accused. Hence, the trial Court was perfectly correct in finding

him guilty under the charge of murder and awarding life imprisonment as referred to above. Nothing was noticed by the Court in the judgment of

the trial Court to interfere either factually or legally.

In the result, the appeal is dismissed and the conviction and sentence imposed on the appellant by the trial Court are confirmed.