Jothilingam vs State of Tamil Nadu

M. Chockalingam, J.—Challenge is made to a Judgment of the Court of Sessions Division, Kanyakumari at Nagercoil, made in S.C. No. 18

of 2006, dated 25.01.2010, whereby the appellant/accused stood charged under Sections 341, 302 and 506(ii) I.P.C., tried and found guilty u/s

302 I.P.C. and awarded life imprisonment along with fine and default sentence and found guilty u/s 341 I.P.C. and awarded one month Simple

Imprisonment and also found guilty u/s 506(i) I.P.C. and awarded two years Rigorous Imprisonment.

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

(a) The deceased was employed in the brick kiln of P.W.7 as a Supervisor. The accused was also working in the same brick kiln and the

deceased was to give Rs. 1,500/- to the accused/appellant towards salary. For the past several months, so many demands were made by the

accused/appellant. The deceased was go on giving evasive answers. On the date of occurrence, i.e., on 27.02.2005, at about 2.00 p.m., when the

deceased was in the house of his father-in-law, the accused went over there and made a demand and this was found to be shameful to the

deceased. Thereafter, the deceased refused to pay the said amount and the accused/appellant made a challenge and went outside.

(b) On 17.02.2005, at 8.00 p.m., when P.W.1, the brother of the deceased accompanied him and both of them were walking on the northern side

of the Thovalai Channel situated on the south side of the Brick chamber, the accused/appellant came there and demanded the dues. The deceased

refused to make the payment. Immediately, the accused took a Vettaruval hidden inside his shirt and attacked the deceased on the right side of the

neck, and the deceased fell down. Then, not satisfied, the accused kicked him and pushed him in the nearby channel. Then, P.W.1 raised alarm,

and the accused threatened to kill P.W.1 and when P.W.1 was running, he was chased by him with the weapon. Thereafter, the accused fled away

from the place of occurrence. Subsequently, P.W.1 returned to the scene of occurrence along with others and found his brother dead.

(c) Then, P.W.1 proceeded to the respondent police station, where P.W.12, the Head Constable was on duty. P.W.12 recorded the statement of

P.W.1 as Ex.P.1. On the strength of the complaint Ex.P.1, a case came to be registered in Crime No. 60 of 2005 under Sections 341 and 302

IPC and the express First Information Report, Ex.P10 was despatched to the Court.

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

made an inspection in the presence of two witnesses and prepared Ex.P.2, the observation mahazar and also Ex.P.11, the rough sketch and also

recovered M.Os.5 and 6, bloodstained earth and sample earth respectively, from the place of occurrence under a cover of Mahazar Ex.P.3. 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.12, the inquest report.

(e) Then, the dead body of the deceased was sent to the hospital, for the purpose of autopsy. P.W.10, the Doctor, attached to Kanniyakumari

Government Medical College Hospital, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and issued Ex.P.8,

the post-mortem certificate, wherein he has narrated the injuries and has opined that the deceased would appear to have died of shock and

haemorrhage due to cut injuries in the neck.

(f) Pending investigation, on 19.02.2005 at 12.00 hours, the Investigator arrested the accused in the presence of the witnesses and he gave a

confessional statement voluntarily and the same was recorded. The admissible part of the confessional statement was marked as Ex.P.13, and he

also produced M.O.1, bloodstained Vettaruval, and the same were recovered under a cover of mahazar Ex.P.14. Then, the accused was sent for

judicial remand.

(g) 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.P14 and Serologist''s report Ex.P17 were received by the Court.

(h) 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 charges were framed and the case was taken up for trial.

(i) In order to substantiate the charges, at the time of trial, the prosecution examined 14 witnesses and relied on 17 exhibits and 7 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. Neither defence witness was examined nor defence document was

marked.

(j) 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 such 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. Murugappan made the following submissions:

(a) According to the prosecution, the occurrence has taken place at 8.00 p.m., on 17.02.2005. P.W.1 is the only eyewitness. The evidence of

P.W.1 should have been discarded, since he is not only an interested witness as brother of the deceased, but also he could have not seen the

occurrence at all. The occurrence has taken place at about 8.00 p.m. and that too in utter darkness. Even in the observation mahazar or in the

rough sketch, there is no mention about any light or moon light, but through the evidence of P.W.1 it was developed that he witnessed the

occurrence in the moon light. Apart from that, according to the F.I.R., P.W.1 and the deceased were coming from the mango grove, but,

according to the evidence of P.W.1, they were going into the mango grove. Thus, in view of the above, he could not have accompanied the

deceased at the time of occurrence.

(b) Added further the learned Counsel that according to P.W.1, there were three cut injuries inflicted upon and no more further injuries were

caused to the deceased, but, according to P.W.2, one more injury was found in the shoulder.

(c) Even according to P.W.1, the accused was coming from West to East in the opposite direction and P.W.1 and the deceased were proceeding

from East to West and thus it would be quite clear that the deceased and the accused would have come face to face with each other, and if

actually he had given cuts as put forth by P.W.1, all the three cut injuries would have been caused on the left side of the deceased. Contrarily, the

postmortem certificate would indicate that all the three injures were found on the the right side of the deceased and thus, those injuries could not

have been caused as put forth by P.W.1. Also P.W.1 could not be taken as witness to the occurrence.

(d) Added further the learned Counsel that the alleged confession and recovery of M.O.1 was nothing but a cooked up affair and introduced in

order to shape the prosecution case. Thus, the evidence on record would clearly indicate that prosecution has miserably failed to prove its case.

(e) Added further, the learned Counsel that in the instant case, even if the Court takes a view that the prosecution has proved the factual matrix,

that it was the accused/appellant, who attacked the deceased and caused his death, the act of the accused would not attract the penal provision of

murder. Admittedly, the appellant was employed in P.W.7''s brick kiln and the deceased was working as Supervisor, and there was a due of Rs.

1,500/- towards the salary, and the accused was demanding the same for a long time. Despite repeated demands, the same was not paid. Under

such circumstances, even the answer given by the deceased refusing to make payment at the time of occurrence, provoked the accused/appellant.

A coolie, who could not get the salary for a long time, but, get an answer of refusal of payment, was provoked by the same and he attacked the

deceased due to the sudden provocation due to non payment of salary. Under such circumstances, it comes under one of the exceptions to Section

300 I.P.C., and this has got to be considered.

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 the brother of P.W.1 was done to death in an incident that took place at 8.00 p.m. on 17.02.2005. Following the

inquest conducted by the Investigator, the dead body was subjected to postmortem. The postmortem doctor has categorically opined as a witness

before the Court and also through the contents of the postmortem certificate that Thangakrishnan died out of shock and haemorrhage. This fact

was never disputed by the appellant before the trial Court. Hence, this Court has no impediment in recording so.

In order to substantiate that it was the accused/appellant who caused the death of the deceased, the prosecution had only one eyewitness, who

was projected as P.W.1. It is true that P.W.1 is the brother of the deceased. But, merely on the ground of relationship, his evidence cannot be

discarded. According to the settled principle of law, the Court before accepting the evidence, must apply the test of careful scrutiny. Even after the

application of the test, this Court is satisfied that the evidence of P.W.1 has got to be accepted. According to him, on the date of occurrence, when

he along with his brother were going through the northern side of the Thovalai Channel on the southern side of the Brick Kiln of P.W.7, the

accused came over there and demanded for salary. When the deceased refused to pay the same, the accused cut him thrice, as a result of which

he fell down, and immediately not satisfied with the act, the accused actually kicked and pushed him into the channel, which is evident from the

evidence of P.W.1. The evidence of P.W.1 remained unshaken, despite cross examination in full and apart from that the ocular testimony which

was projected through P.W.1 stood fully corroborated by the medical evidence, which was projected through the postmortem doctor and the

postmortem certificate.

There were three cut injuries found on the neck of the deceased. Now, the contention put forth by the learned Counsel for the appellant is that

the injuries were actually found on the right side of the deceased and if the deceased was actually standing in front of the accused/appellant and one

was facing the other, the injuries should have been caused on the left side of the deceased cannot be countenanced for the simple reason that if the

accused was facing the right side of the neck of the deceased, quite naturally those injuries could have been caused.

Added further, yet another circumstance was the recovery of M.O.1, pursuant to the confessional statement made. A witness has been

examined to that effect, and thus the factum of arrest, confessional statement and recovery remained proved. It would be quite indicative of the fact

that because of the non payment of the salary, it was the accused/appellant, who attacked the deceased at the time of occurrence and caused his

death instantaneously. Hence, it leaves no reasonable doubt in the mind of the Court.

Insofar as the second line of arguments is concerned, the Court is able to find force in the contentions put forth by the learned Counsel.

Admittedly, this appellant/accused was employed as a coolie in the brick chamber of P.W.7 and during the relevant time, the deceased was

working as a supervisor, and a sum of Rs. 1,500/- towards salary was retained by the deceased and not paid to the appellant/accused. Despite

repeated demands, the deceased did not pay the amount to him. At the time of occurrence, when there was a demand made by him, there was a

flat refusal for making payment. Thus, naturally a coolie like the accused would get provoked. At the same time, when there was a refusal to pay

the wages, the accused got provoked and attacked him. Under such circumstances, it cannot be said that the accused attacked him with intention

or premeditation, but, due to sudden provocation. Hence, it cannot fall under the definition of murder, and therefore, the act of the accused would

attract the penal provision of Section 304 (Part I) I.P.C. and awarding a punishment of seven years rigorous imprisonment would meet the ends of

justice.

Accordingly, the conviction and the sentence of life imprisonment imposed by the trial Court on the accused/appellant u/s 302 I.P.C. are set

aside, and instead, he is convicted u/s 304 (Part I) I.P.C. and he is directed to suffer seven years Rigorous Imprisonment. However, the conviction

and the sentence imposed by the trial Court on the accused/appellant under Sections 341 and 506(i) I.P.C. are confirmed. The imprisonment

already undergone by the accused/appellant shall be given set off. The sentences imposed are to run concurrently as recorded by the trial Court.

The fine amount imposed by the Trial Court u/s 302 I.P.C. is ordered to be treated as one imposed u/s 304 (PartI) I.P.C.

In the result, this appeal is accordingly disposed of.