Murugesan vs State

M. Chockalingam, J.—This appeal challenges a Judgment of the Court of Sessions Division, Fast Track Court, Pudukkottai, made in S.C.

No. 82 of 2009, dated 21.01.2010, whereby the appellant/sole accused stood charged, tried and found guilty as per 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-in-law of the deceased Kumar. P.W.1, deceased and the accused/appellant, all belonged to the same place, and they are

fishermen by profession. On the date of occurrence, that was on 05.04.2009, at 9.30 p.m., when the deceased along with P.W.1 and others were

talking at the place of occurrence, the accused came over there and demanded the money, which was owed to him, and it was replied, it would be

paid later. Aggrieved over the answer, the accused took the knife and stabbed him on different parts of the body. It was witnessed by P.W.1 and

others from the place of occurrence. While the accused ran away from the place of occurrence, the deceased was taken to Manamelkudi

Government Hospital, where he was declared dead by the doctor.

b) Then, P.W.1 proceeded to the respondent police station, where P.W.11, the Sub Inspector of Police, was on duty and he gave a complaint to

him at 21.30 hours. On the strength of the complaint Ex.P.1, a case came to be registered in Crime No. 42 of 2009 u/s 302 IPC and the express

First Information Report, Ex.P9 was despatched to the Court.

c) On receipt of the copy of the F.I.R., P.W.12, 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.2, the observation mahazar and also Ex.P.10, the rough sketch and also

recovered M.Os.1 and 2, 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 witnesses

and panchayatdars and prepared Ex.P.11, the inquest report.

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

Government Hospital, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and issued Ex.P.6, 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

multiple injuries.

e) Pending investigation, the Investigator arrested the accused on 06.04.2009 at 14.30 hours in the presence of the witnesses and he gave

confessional statement voluntarily and the same was recorded. The admissible part of the confessional statement was marked as Ex.P.4 and he

also produced M.O.3, Knife and the same were recovered under a cover of mahazar Ex.P.5. Then, the accused was sent for judicial remand.

f) 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.P8 and Serologist''s report Ex.P12 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 charges were framed and the case was taken up for trial.

h) In order to substantiate the charges, at the time of trial, the prosecution examined 12 witnesses and relied on 12 exhibits and 3 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.

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 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. S. Deenadhayalan would submit that according to the prosecution, the

occurrence has taken place at 9.30 p.m. on 05.04.2009, and P.Ws.1 and 2 are the witnesses to the occurrence. Both the witnesses, who were

examined by the prosecution are very close relatives of the deceased and lot of discrepancies are found in their evidence. P.W.1 has given Ex.P.1,

wherein it is stated that one Baskaran was present, but he was not examined by the prosecution. It is quite clear that according to the witnesses,

Police personnel came to the spot immediately and examined Bhaskaran and he also gave information to the police and the same was recorded. If

to be so, apart from Ex.P.1, there should be another first information and that was suppressed. Had it been produced before the Court, it will give

a different version from the prosecution story and hence, the suppression of the same has got necessary inference against the prosecution.

According to the Investigator, he arrested the accused and he gave a confessional statement, pursuant to which the weapon of crime, knife, has

been recovered from the accused. Contrarily, P.W.1 has categorically admitted that the accused was actually handed over to the Police

immediately after the occurrence and this would go to show that the alleged confessional statement and recovery of knife are nothing but false. The

learned Counsel, further added that number of witnesses have been examined namely P.Ws.3 to 7. A perusal of Ex.P.10, Rough Sketch, would

clearly indicate that they did not own any house in the street, where the occurrence has taken place, and they are all strangers, and there is no

explanation as to how they happened to be in the place of occurrence. Added further, though there are number of houses found in the street and

there are houses in front of the place of occurrence, no independent witnesses have been examined. It would also clearly indicate that the

occurrence could not have taken place as put forth by the prosecution. Thus, the prosecution has miserably failed to prove its case.

Added further the learned Counsel that even according to P.W.2 there was a quarrel between the deceased and the accused for about half an

hour and there was a demand of money and thus it would be neither intentional nor premeditated on the part of the accused and it 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 brother-in-law of P.W.1 was done to death in an incident that took place at 9.30 p.m. on 05.04.2009. Following the

registration of the case by P.W.11, the Sub-Inspector of Police, the investigation was taken up by P.W.12, the investigating officer and he also

made an inquest on the dead body and after inquest, the dead body was sent for postmortem and the same was conducted by P.W.10, medical

person. The prosecution was able to establish the fact that the deceased died out of shock and haemorrhage, due to the injuries sustained by him

by examining P.W.10, postmortem doctor before the Court and through the contents of Ex.P.6, postmortem certificate. Further, the fact that the

deceased Kumar died out of homicidal violence was never disputed by the appellant/accused before the trial Court. Hence, there is no impediment

for the trial Court in recording so.

In order to substantiate that it was the accused/appellant who caused the death of the deceased, the prosecution rested its case on the direct

evidence of P.Ws.1 and 2, who are the eyewitnesses, apart from the other circumstances attendant. It is true that P.Ws.1 and 2 are closely related

to the deceased. It is settled principle of law that merely on the ground of relationship with the deceased, their evidence cannot be discarded, but,

before accepting it, it should be tested by careful scrutiny. Even after the application of the test, this Court is satisfied that they have witnessed the

occurrence. P.Ws.1 and 2 have spoken in one voice that at the time of occurrence both of them were along with the deceased, and at that time,

the accused demanded the money owed, and there was an evasive answer and not satisfied with that, the accused took the knife, stabbed the

deceased and caused his death instantaneously. Despite the cross-examination in full, the evidence of P.Ws.1 and 2, eyewitnesses remained

unshaken. Hence, the trial Judge is perfectly correct in accepting the evidence of P.Ws.1 and 2 and this ocular testimony projected through

P.Ws.1 and 2 stood fully corroborated by the medical evidence. According to the postmortem doctor, all those injuries actually found in the

postmortem certificate could have been caused by the weapon of crime.

In so far as the other peace of evidence, regarding recovery of weapon, pursuant to the confessional statement, as rightly contended by the

learned Counsel for the appellant, it could not be acted upon. From the available evidence, it is quite clear that the accused/appellant was handed

over to the Investigator in the place of occurrence. But the Investigator would claim that he arrested the accused on the next day and he gave a

confessional statement, pursuant to which the weapon of crime was recovered. Hence, this part of the evidence as put forth by the prosecution that

is arrest, confessional statement and recovery, could not be accepted.

Now, the contention of the learned Counsel for the appellant is that originally there was an information passed by one Baskaran and his name

also found place in the F.I.R. as one of the eyewitness, but he was not examined and even the information given by him has actually been

suppressed and that would go to show the prosecution has burked the real facts. But, it cannot be countenanced for the simple reason that P.Ws.1

and 2 were actually along with the deceased at the place of occurrence. It might also be true that Baskaran was also a witness. When eyewitnesses

P.Ws.1 and 2 are examined and their evidence remained acceptable, then the non-examination of Baskaran cannot be stated to be in anyway fatal

to the prosecution case. From the evidence, it is quite clear that P.W.1 has given Ex.P.1 report and on the strength of it a case came to be

registered and it also reached the Judicial Magistrate within a short span of time and it will show the truth and genuineness of the document. Under

such circumstances, it leaves no reasonable doubt to disbelieve the document Ex.P.1 report and the corresponding F.I.R, and the contention put

forth by the appellant in that regard does not carry merit and the same is liable to be rejected and accordingly, rejected.

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. Even

according to the prosecution, at the time of occurrence, when P.Ws.1 and 2, eyewitnesses were accompanying the deceased, the accused came

there and demanded the money lent, which was already given to him, but he did not give proper answer. Then, aggrieved over the same, the

accused took the knife and immediately stabbed the deceased and thus the act of the accused is neither intentional nor premeditated. But, it was

due to sudden wordy altercation and due to the answer given by the deceased, he was provoked and thereby he has acted so. Apart from that, the

materials available would clearly indicate all of them were in a drunken mood at that time. It is true that self intoxication cannot be a defence, but, at

the same, the Court must look into the surrounding circumstances, in which the act has been committed. All the above would indicate, the act of

the accused was neither intentional nor premeditated, but, due to sudden quarrel and provocation and hence, the act of the accused cannot be

brought under the penal provision of 302 I.P.C., but it would attract the penal provision of Section 304 (Part II) I.P.C. and awarding a punishment

of five 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 II) I.P.C. and he is directed to suffer five 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 I.P.C. is ordered to be treated as

one imposed u/s 304 (Part II) I.P.C.

In the result, this appeal is accordingly disposed of.