Palpandi vs The State

M. Chockalingam, J.—This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No. II, Madurai, dated 10.02.2010, made in S.C. No. 249 of 2009, whereby the appellant/sole accused, who stood charged u/s 302 IPC, on trial, found guilty under the charge of murder, convicted thereunder and sentenced to undergo life imprisonment and also to pay a fine of Rs. 1000/-, in default to undergo three months.

Short facts, sans unnecessary particulars, necessary for the disposal of the appeal can be stated as follows:

(a) P.W.1 Balamurugan and P.W.2 Anbalagan are the sons of one Muthukrishnan, the deceased in this case. They were all living together. On 15.03.2009 at about 5.00 p.m., the deceased, accompanied by P.W.1 and P.W.2, went to S. Kodikulam Bharat Nagar to pour water on their newly constructed house. After doing so, they were all returning and at that time, the deceased felt stomach pain and wanted to ease himself and entered into a kanmoi nearby. P.Ws.1 and 2 also entered into the kanmoi and they were all easing themselves by attending natures call. P.W.3 was also attending natures call in a nearby place. At that time, the accused, armed with a knife, came nearby uttering "you are responsible for the death of my brother" and so saying, he attempted to stab P.W.2. Immediately, the deceased held the legs of the accused and appealed to him not to do anything. However, uttering "you are also responsible; you must also be put an end and only then we could attain peace" the accused stabbed the deceased on different parts of his body and immediately the deceased fell down. P.Ws.1 and 2 shouted and the accused threatened them. It was also witnessed by P.W.3. The appellant/accused left the place of occurrence with the weapon of crime. Thereafter, P.W.1 went to the respondent police and gave Ex.P-1 Complaint to P.W.11, the Inspector of Police.

(b) P.W.11, who was on duty at 08.45 p.m. on 15.03.2009, received Ex.P-1 Complaint from P.W.1 and on the strength of Ex.P-1 registered a case in Crime No. 200/2009 u/s 302 IPC and Ex.P-8, the First Information Report, was sent to the Court. He took up the investigation. He gave information to the Regional Forensic Laboratory and the Photographer, proceeded to the place of occurrence, made an observation in the presence of P.W.5 and another and prepared Ex.P-2, the observation mahazar and also drew Ex.P-9, the rough sketch. P.W.11 recovered M.O.6 - bloodstained earth and M.O.7 - sample earth from the place of occurrence under Ex.P-3 Mahazar attested by the same witnesses. Thereafter, P.W.11 conducted inquest on the body of the deceased in the presence of panchayatdars and witnesses and prepared Ex.P-10, the inquest report. He also caused the place of occurrence and the dead body to be photographed. Ex.P-11 (series) are the photographs. Thereafter, he sent the dead body for postmortem through P.W.8, the Head Constable, with a requisition.

(c) P.W.10, the Scientific Assistant, Forensic Laboratory, Madurai, on receipt of intimation from the Investigator, visited the place of occurrence, made an observation, noticed the injuries found on the dead body and gave Ex.P-7, the Report.

(d) P.W.9, the Doctor attached to the Government Medical College Hospital, Madurai, on the basis of the requisition made by the Investigator, conducted inquest on the body of the deceased at 12.30 p.m. on 16.03.2009 and after postmortem he gave Ex.P-6, the postmortem certificate, opining that the deceased would have died of shock and haemorrhage due to the cumulative effect of all the injuries, 16 to 20 hours prior to autopsy. After postmortem, P.W.8, the Head Constable, recovered M.Os.2 to 5, the personal wearing apparels of the deceased, from the dead body and handed over the same to the Inspector of Police.

(e) Pending investigation, the accused was arrested on 16.03.2009 at about 1.00 p.m. and when enquired in the presence of P.W.6 and another, the accused came forward to give a voluntary confessional statement and the same was recorded by P.W.11, the Inspector of Police. Ex.P-4 is the admissible portion of the confessional statement, pursuant to which the accused took and produced M.O.1 - knife, M.O.8 - lungi and M.O.9 - shirt and they were recovered under Ex.P-5 Mahazar attested by P.W.6 and another. Thereafter, the accused was sent for judicial custody. P.W.11, the Inspector of Police, gave a requisition to the Court for sending the material objects recovered in this Court for chemical analysis, which resulted in three reports, namely Exs.P-12 and P-13, the Chemical Examination Report and Ex.P-14, the Serology Report. P.W.11, the Inspector of Police, examined the witnesses and recorded their statements. On completion of investigation, P.W.11 filed the final report against the accused u/s 302 IPC on 29.05.2009.

After committal proceedings, the case was taken on file by the Sessions Court in S.C. No. 249/2009 and necessary charge was framed. To prove the charge against the accused, the prosecution examined 11 witnesses as P.Ws.1 to 11 and marked 14 documents as Exs.P-1 to P-14 and produced M.Os.1 to 9. On completion of the evidence on the side of the prosecution, when the accused was questioned u/s 313 of the Code of Criminal Procedure about the incriminating circumstances found in the evidence of prosecution witnesses, he flatly denied all of them as false. On the side of defence, no witness was examined but one document was marked as Ex.D-1. The trial court, after hearing the parties, took the view that the prosecution has proved the charge against appellant/accused beyond reasonable doubt, found him guilty, convicted him thereunder and awarded punishments as referred to above. Hence this appeal has been brought forth by the accused.

Advancing arguments on behalf of the appellant/accused, the learned Counsel Mr. V. Kathirvelu, appointed as amicus curiae, would make the following submissions.

(a) In the instant case, the prosecution marched three witnesses as occurrence witnesses, who are P.Ws.1 to 3. P.Ws.1 and 2 are the sons of the deceased and P.W.3 was a stranger. P.Ws.1 and 2, though claimed to have witnessed the occurrence, they could not have been in the place of occurrence at all. According to the learned Counsel, charge has been framed as if the occurrence has taken place at 4.45 p.m. and for that charge there was no evidence, since P.Ws.1, 2 and 3, the so-called eye-witnesses, have deposed that the occurrence was taken place at about 6.45 p.m. and thus for the evidence adduced before the court, there was no charge related and for the charge framed against the appellant/accused there was no evidence and therefore the prosecution has lost its case.

(b) Added further the learned Counsel, P.Ws.1 and 2 could not have been in the place of occurrence and this would be quite clear from the evidence of P.W.3. According to P.W.3, police reached the spot within ten minutes from the time of occurrence and he gave information and that was taken by the police. Added further the learned Counsel, the occurrence was taken place at 6.45 p.m. and FIR has come into existence, according to P.W.11, the Investigator, at about 8.45 p.m. but, this could not have been so for the simple reason that FIR has reached the Judicial Magistrate only at about 3.00 a.m. on 16.03.2009 and thus there was a delay of 7 hours 15 minutes in FIR reaching the Court and further the Police Constable who carried FIR to the Court was not examined and the delay remained unexplained and there is evidence to show that the distance between the police station and the residence of the Judicial Magistrate could be covered within a period of seven minutes. If to be so, according to the learned Counsel, the non-explanation of the delay in FIR reaching the Court would be clearly indicative of the fact that FIR could not have come into existence at 8.45 p.m. as put-forth by the prosecution. If that be so, P.Ws.1 to 3 could not have seen the occurrence at all.

(c) Added further the learned Counsel, pointing to Ex.D-1 and the evidence of P.W.10, the forensic expert, P.W.10 has gone to the place of occurrence at 9.00 p.m. on 15.03.2009 and collected samples and has given Ex.D-1 Report, where, under the caption "History of Case", it is mentioned that the deceased was murdered by an unknown person and all would go to show that P.Ws.1 to 3 could not have seen the occurrence and apart from that some unknown person had committed the crime and it was not the appellant/accused and, under the circumstances, the prosecution has miserably failed to prove its case.

(d) Added further the learned Counsel, the statements of P.Ws.1 and 2, the so-called eye-witnesses and also the inquest report have reached the Court only on 20.03.2009 and also the statement of P.W.3 has reached the Court only on 30.03.2009. All would go to show that the prosecution has miserably failed to prove its case but the trial court has taken an erroneous view.

(e) Added further in his second line of argument, the learned Counsel would submit that the motive for the crime attributed to the accused, as per the prosecution case, that P.W.2 was responsible for the death of his brother on the earlier occasion when he went to the house of the deceased was lingering in the mind of the accused/appellant and the accused attempted to stab P.W.2 and at that time the deceased intervened and therefore being provoked the appellant acted so and thus the act of the accused/appellant was neither pre-meditated nor intentional and hence this aspect has got to be considered by the court.

The Court heard the learned Additional Public Prosecutor on all the submissions made by the learned Counsel for the appellant/accused and paid its anxious consideration to the submissions made on either side and also perused the materials available on record.

It is not in controversy that one Muthukrishnan, father of P.Ws.1 and 2, was done to death in an incident that had taken place on the evening hours on 15.03.2009. Following the registration of a case by P.W.11, the Investigator himself and preparation of inquest report, after inquest in the presence of Pnachayatdars and witnesses, the dead body was subjected to postmortem by P.W.9, the postmortem doctor, and he has categorically opined, as a witness before the Court and also through the contents of Ex.P-6, the Postmortem Certificate, that the deceased died out of shock an haemorrhage due to the cumulative effect of all the injuries. The fact that the deceased died out of homicidal violence was never disputed by the appellant either before the trial court or before this Court and hence there is no impediment in recording so.

In order to substantiate the charge that it was the accused who caused the death of the deceased, the prosecution marched three witnesses, namely P.Ws.1 to 3, as eye-witnesses to the occurrence. It is true that P.Ws.1 and 2 are the sons of the deceased and P.W.3 is a stranger. Merely because of the relationship of eye-witnesses, their evidence cannot be discarded but, before acceptance the court must apply the test of careful scrutiny. P.Ws.1 and 2 have deposed to the effect that they have got a newly constructed House at S. Kodikulam Bharat Nagar and on the evening hours on 15.03.2009, accompanied by their father, they went to the place where the new construction was going on for pouring water and after pouring water they have been coming back and on the way their father felt stomach pain and he wanted to ease himself and then they went to the nearby kanmoi and attending the natures call and at that time the accused/appellant came there and attempted to stab P.W.2 and at that juncture their father intervened and appealed to the appellant/accused not to attack P.W.2 but the accused stabbed their father. Despite the cross-examination in full, their evidence remained unshaken.

Learned Counsel for the appellant made a comment that charge was framed as if the occurrence was taken place at 4.45 p.m. but the evidence of P.Ws.1 to 3 was to the effect that the occurrence has taken place at 6.45 p.m. and thus there was no evidence for the charge framed and in the circumstances the case of the prosecution should fail. The Court is unable to agree with the learned Counsel for the simple reason that even in Ex.P-1 Complaint and in the printed FIR, which was without any correction, the time of occurrence has been shown as 6.45 p.m. Now at the time of framing of charges by the Court of Session a mistake has crept in as if the occurrence was taken place at 4.45 p.m., while the entire case records which were placed before the Court of Session for the purpose of framing of charges and if that was acted upon, it would cause miscarriage of justice and hence that cannot be allowed. In the circumstances of the case, the documentary and oral evidence would consistently say that the occurrence was taken place at 6.45 p.m. on the date of occurrence, that was on 15.03.2009.

Learned Counsel for the appellant, pointing out to the evidence of P.W.10, the Forensic Expert and also Ex.D-1, would submit that the appellant was not the person who attacked the deceased and it was an unknown person as categorically stated by P.W.10 in her evidence as well as in Ex.D-1 document. The Court is unable to give any evidentiary value to this piece of evidence. P.W.10 was called to the place of occurrence for collection of samples and there is nothing for her to mention about the History of the Case and apart from that mere mentioning as known or unknown person in her report cannot in any way affect the truth of the prosecution case and that too in the face of the ocular testimony put-forth by the prosecution through the evidence of P.Ws.1 to 3. Hence the evidence of Forensic Expert and also Ex.D-1 has got to be eschewed and should not be given any evidentiary value on the face of the ocular testimony projected through P.Ws.1 to 3 which stood corroborated by the medical evidence, namely the evidence of P.W.9, the doctor, who conducted autopsy on the body of the deceased and Ex.P-6, the postmortem certificate, given by him.

Yet another circumstance, which stood as a strong piece of evidence to the prosecution case, is the arrest of the accused and recovery of M.O.1 - knife and M.Os.8 and 9, the lungi and shirt, from the accused pursuant to the confessional statement given by him in the presence of P.W.6 and thus the recovery of weapon of crime, in the considered opinion of the court, was pointing to the nexus of the accused with the crime.

The contention put-forth by the learned Counsel for the appellant that there was delay in the registration of the case and also the FIR reaching the Court, in the opinion of the Court, cannot in any way be a reason to cast a doubt on the prosecution case. P.W.1 has categorically stated in his evidence that immediately after the occurrence he went to their house and informed to their family members and then he went to the respondent police station and thus the delay has happened. The occurrence has taken place at 6.45 p.m. and the case was registered at 8.45 p.m. and FIR has reached Judicial Magistrate at his residence at 3.00 a.m. during the night hours when the Magistrate would be sleeping in his house and thus it is a case where FIR has reached the Magistrate when he was actually in his residence and that too at the time of sleeping. In such circumstances, the delay occurred cannot be said to be a delay which would affect the truth of the prosecution case.

Comment was made by the learned Counsel that the inquest report, along with the statements of P.Ws.1 and 2, have reached the Court only on 20th March, 2009. This cannot be a reason which would cast a doubt on the prosecution case, since the presence of P.Ws.1 and 2 is shown in the inquest report. Further, the presence of P.ws.1 and 2 is actually found mentioned in Ex.P-1 complaint and FIR, which reached the Court at about 3.00 a.m. on the very night. Apart from that, P.W.9, the doctor, has given evidence as a witness before the Court that he conducted autopsy on the body of the deceased on 16.03.2009. If to be so, the preparation of the Inquest Report should have been preceded the postmortem which was conducted on 16.03.2009. It is true that sending of the above documents should have been done earlier but done with some delay. However, the Court is unable to agree with the defence plea that the prosecution has come with a false story. Thus, the evidence of eye-witnesses, corroborated by the medical evidence and also recovery of weapon of crime from the accused pursuant to his confession would be clinchigly pointing to the guilt of the accused and the trial court was perfectly correct in finding the appellant/accused guilty.

Insofar as the second line of argument of the learned Counsel is concerned, the Court is unable to see any quarrel or provocation for the appellant in stabbing the deceased to death at the time of occurrence. An attempt was made by the appellant/accused against P.W.2 and at that time, the old man, aged about 71 years, catching hold of the legs of the appellant/accused appealed to him not to do anything to his son and even then the accused/appellant has stabbed the old man indiscriminately to death. Hence the act of the appellant/accused is nothing but intentional and the trial court was perfectly right in finding the appellant/accused guilty u/s 302 IPC and awarding life imprisonment and there is nothing, either factually or legally, to disturb the well considered judgment of the trial Court, which requires an order affirmation at the hands of this Court.

In the result, the appeal fails and the same is dismissed. The judgment of the trial court, dated 10.02.2010, made in S.C. No. 249/2009 is confirmed. The Court places on record its appreciation for the assistance rendered by Mr. V. Kathirvelu, the learned Counsel, appointed as amicus curia, in putting forth the case elaborately after thorough scrutiny of the materials on record.