Murugan @ Raja @ Kollampalam vs State

M. Chockalingam, J.—Challenge is made to a judgment of the learned Principal Sessions Division, Thoothukudi, in S.C. No. 264 of 2007,

dated 04.12.2008 whereby the appellant stood charged, tried and found guilty under Sections 341, 302 and 506(2) of IPC and awarded

punishment as follows;

One month simple imprisonment for the offence u/s 341 IPC; life imprisonment along with fine and default sentence for the offence u/s 302 IPC

and three years rigorous imprisonment for the offence u/s 506(2) IPC.

The short facts necessary for the disposal of this appeal can be stated as follows:

(i) P.W.1 is the brother of the deceased, Vemban and they were residing at Pannamparai village. The family consists of the parents and one

unmarried sister and they were all living jointly. The said deceased was a van driver. During the village festival in the year 2005, the accused

misbehaved with a dancer. When P.W.7, who is the Village President, questioned about the same, the accused stabbed him. On the complaint of

P.W.7, a case was registered by Sathankulam Police Station and it was also pending. While the matter stood thus, the accused attacked P.W.7,

the Village President, for the second time and another case came to be registered and the same was pending before the Judicial Magistrate,

Santhankulam. In the said case, the deceased Vemban gave evidence in favour of P.W.7 and aggrieved over the same, the accused/appellant

waited for a chance to wreck his vengeance.

ii) On 17.05.2007, at 01.00 p.m., the deceased came to Santhankulam bus stand after visiting his wife and children. P.W.2 received him and both

of them went to Santhankulam market. After the purchase was over, at about 2.15 p.m. the deceased along with P.W.2 were standing in front of

the shop near the bus stand. The deceased noticing the accused, attempted to run away from the place. But, the accused chased him and after

making restraint, stabbed him and caused his death instantaneously. This occurrence was witnessed by P.Ws.1, 3 and 5 to 8. Thereafter, the

accused ran away from the place of occurrence.

iii) P.W.1 accompanied by P.W.7, the Village President, went to the police station and gave a complaint Ex.P1 to the Sub Inspector of Police,

P.W.16. On the strength of Ex.P1, P.W.16 registered a case in Cr. No. 109 of 2007 under Sections 341, 294(b), 302 and 506(ii) IPC. The

Printed FIR Ex.P16 along with Ex.P1, the complaint, was despatched to the Court concerned and to the higher officials.

iv) On receipt of the copy of the FIR, P.W.17, the Inspector of police of the Circle, took up investigation, proceeded to the scene of occurrence,

made an inspection in the presence of witnesses and prepared an Observation Mahazar Ex.P.8, and a rough sketch Ex.P.17. Further the place of

occurrence has been photographed through P.W.13 and photos and negatives were marked as MO5 series. Besides that, he recovered material

Objects MOs 2, 3 and 12 in the presence of the witnesses under a cover of mahazar Ex.P9. The investigator conducted inquest on the dead body

of the deceased in the presence of the witnesses and panchayatdars and prepared an inquest report, which was marked as Ex.P.18.

v) Following the same, the dead body of the deceased was sent to the Government Hospital, for the purpose of autopsy. On receipt of the

requisition made by the investigator, P.W.2, the Doctor, attached to Santhankulam Government Hospital, conducted autopsy on the dead body of

the deceased and issued Ex.P.3, the post-mortem certificate, and opined that the deceased died out of hemorrhage and shock due to injuries

sustained by him.

vi) Pending investigation, the investigating officer came to know that the accused surrendered before the Judicial Magistrate Court on 25.05.2007.

The investigating officer made a requisition for his police custody and the same was ordered. When the accused was taken to police custody, he

came forward to give a confessional statement voluntarily in the presence of witnesses, and the admissible part of the confessional statement of the

accused was marked as Ex.P.12, pursuant to which he produced MOs1 and 4 and they were all recovered under a cover of mahazar Ex.P13.

Then, he was sent for judicial remand. All the material objects recovered from the place of occurrence, from the dead body and from the accused

were subjected to chemical analysis by the forensic department on a requisition made by the investigating officer through the concerned Court.

Following the same, the Chemical analyst''s report, Ex.P6 and Serologist''s report Ex.P7 were received by the Court.

vii) On completion of the investigation, the Investigating Officer has filed the final report. The case was committed to the court of sessions and

necessary charges were framed.

viii) In order to substantiate the charges, at the time of trial, the prosecution examined 17 witnesses and relied on 18 exhibits and 12 material

objects. On completion of the evidence on the side of the prosecution, the accused/appellant 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. No defence witness was examined. However,

one document was marked as Ex.D1.

ix) 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 beyond reasonable doubt and hence, found the accused/appellant guilty and awarded the punishment as referred to above. Under

these circumstances, this criminal appeal has arisen at the instance of the accused/appellant.

Advancing the arguments on behalf of the appellant, the learned Counsel would submit that the prosecution has miserably failed to prove its

case. According to the prosecution, the occurrence took place at 2.15 p.m. on 17.05.2007 and now in the instant case, it is true that the

prosecution has marched number of eyewitnesses, but the answers given by those witnesses at the time of the cross-examination would indicate

that all of them were inimical to the accused and they were very close to the deceased. It is pertinent to point out that P.W.7, the Village President,

and all the eyewitnesses came forward to give false evidence before the Court.

Added further, the learned Counsel that the evidence adduced by the prosecution through those witnesses if carefully scrutinised would clearly

indicate that they are inconsistent to each other. The medical opinion canvassed by the prosecution through the postmortem doctor did not

corroborate the ocular testimony. Apart from that, the evidence adduced by the prosecution as if the accused has given a confessional statement,

pursuant to which he produced MO1 knife and that too when he was taken to police custody on his surrender, was a false introduction in order to

support the prosecution case and thus, the prosecution has miserably failed to prove the charges levelled against the appellant/accused.

Added further, the learned Counsel in the second line of his argument that even assuming that the prosecution has proved the factual matrix that

it was the appellant/accused who attacked the deceased at the time of occurrence, the act of accused would not attract the penal provision of

murder. The learned Counsel took the Court to the evidence of P.Ws.1, 3, 5 to 8 and pointed out that all the witnesses have categorically admitted

that there was a wordy altercation between the appellant/accused and the deceased and there was a scuffle and it was going on for 15 minutes and

as a result of the same and also due to a sudden provocation, the accused has acted so and stabbed the deceased. Thus, the act of the accused

was neither intentional nor premeditated. It was a culpable homicide not amounting to murder. Under such circumstances, it has also to be

considered by the Court, which the trial Court has failed to consider.

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

It is not in controversy that in the incident that took place at 2.15 p.m. on 17.05.2007, the deceased, Vemban was done to death. Following the

request made by the Investigating Officer, the dead body was subjected to postmortem by P.W.2, the postmortem doctor, who has given a

categorical opinion that the deceased died out of shock and hemorrhage due to the injuries sustained by him. The opinion given by the medical

person is also found in Ex.P3, postmortem certificate. The fact that Vemban the deceased died due to homicidal violence was never disputed by

the appellant/accused before the trial Court and hence it is recorded so by the trial Court and rightly too.

In order to substantiate that it was the accused who stabbed the deceased to death, in the considered opinion of the Court, the prosecution has

got evidence in abundance and examined P.Ws.1, 3, 5 to 8. A careful scrutiny of the entire evidence would clearly indicate that their evidence was

cogent, natural and acceptable. All of them have spoken in one voice that when the deceased was standing in the bus stop along with his brother,

the accused/appellant came over there and there was a wordy altercation and in that process, they scuffled with each other and the accused

attacked Vemban the deceased with a knife and caused his death. Thus, the ocular testimony adduced by the prosecution through the above

witnesses is corroborated by the medical evidence. The prosecution has marched the postmortem doctor who has given his opinion that is referred

to in the postmortem certificate Ex.P3.

Added circumstances, are the production of MO1, knife, the weapon of crime, by the appellant/accused following the confessional statement

given by him and recorded by the investigating officer. In order to substantiate the fact that the accused gave a confessional statement and also

produced the knife, the prosecution has marched the witness and his evidence remained unshaken despite the cross-examination in full. Thus, the

prosecution has put-forth sufficient evidence both direct and also circumstantial, pointing to the guilt of the accused and thus, the contentions put-

forth by the learned Counsel for the appellant in that regard have got to be rejected. Accordingly, they are rejected.

In so far as the second line of argument is concerned, the Court is able to find force in the contentions put-forth by the learned Counsel. It is

true that the accused has got sufficient motive attributed to him to attack the deceased, but on the the date of occurrence at 2.15 p.m. at the bus

stand where the deceased was standing along with his brother, the accused came over there and there was a wordy altercation following which

there was a scuffle. This fact has been spoken to by P.Ws.3, 6 to 8. This part of evidence would clearly indicate that the act of the accused was

neither intentional nor premeditated. But, it was following a wordy altercation in a public place and also following a scuffle, the accused has taken a

knife and stabbed the deceased and it could not be termed as murder, but culpable homicide not amounting to murder. Therefore, it could not be

brought u/s 302 of the Code, but it would attract the penal provision of Section 304 (Part I) IPC 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 IPC are set

aside, and instead, he is convicted u/s 304 (Part I) IPC and he is directed to suffer seven years Rigorous Imprisonment. The imprisonment already

undergone by the accused/appellant shall be given set off. The fine amount imposed by the Trial Court u/s 302 IPC is ordered to be treated as one

imposed u/s 304 (Part I) IPC. The conviction and sentence imposed by the lower Court on the appellant under Sections 341, and 506(2) IPC are

confirmed. The sentences imposed are ordered to run concurrently as recorded by the lower Court.

The Criminal Appeal is disposed of accordingly.