Periyasamy vs State

Dr. S. Tamilvanan, J.—The criminal appeal has been preferred against the conviction and sentence imposed by Judgment, dated 27.07.2012 made in S.C. No. 88 of 2011 on the file of the Principal Sessions Judge, Namakkal.

It is seen that the appellant is the sole accused and he was convicted under Section 302 IPC and sentenced to undergo life imprisonment and also imposed a fine of Rs. 10,000/- and in default to undergo Imprisonment for one year; under Section 324 IPC (2 counts) and sentenced to undergo Imprisonment for one year for each count and also imposed a fine of Rs. 5,000/- for each count and in default to undergo Imprisonment for a period of 6 months for each count.

As per the prosecution case, the accused is the elder son of witness Palanichamy (PW1), the de facto complainant and Pavazhakodi (since deceased) and also the husband of witness Shanthi (PW2). On 09.12.2010 at about 7.00 p.m, when witness Palanichamy and his wife Pavazhakodi (since deceased) were chatting with each other in front of their house, the accused who came to his house picked up a quarrel with his wife Shanthi, asking her what she had decided about shifting the residence. When, Shanthi refused to shift and wanted to reside at the same place, the accused developed enmity against her and went inside his house and came out with a koduval and decided to kill witness Shanthi. On the said circumstances and due to enmity, on 09.12.2010 at about 07.00 p.m, in front of the house of witness Palanichamy at Rasa Koil Street, Ramadoss Nagar, Nanjai Idayar with in Velur Police Station limits, the accused with intent to cause the death of witnesses Shanthi and Palanichamy, cut witness Shanthi with a koduval (sickle) on her neck by holding her tuft and pushing her down. Since Shanthi blocked and evaded, the accused voluntarily caused hurt on her right arm, left forearm and on the back of her head and when witness Palanichamy and Pavazhakodi (since deceased) intervened the accused cut witness Palanichamy with the same koduval on the back side of his head above the neck and on the left index and middle finger and the accused did the above acts with such intention and thereby the accused had committed an offence punishable under Section 307 IPC (2 counts). In the said incident and place and in the course of the same transaction, the accused with intent to cause the death of Pavazhakodi (since deceased) cut indiscriminately on the left hand, right hand, left cheek, right side neck and on the back of Pavazhakodi and as a result of which, the said Pavazhakodi died on 10.12.2010 at about 7.30 p.m, at Mohan Kumaramangalam Government Hospital at Salem, due to multiple cut injuries sustained and thereby the accused had committed an offence punishable under Section 302 IPC.

On appearance of the accused before the trial court and after hearing both sides, found that prima facie case is made out and framed the charges against the accused for the offences under Sections 307 IPC (2 counts) and 302 IPC and when the accused was questioned on the charges, he pleaded not guilty and claimed for the detailed trial. In order to prove the guilt of the accused, the prosecution has examined, witnesses P.W.1 to P.W.18 and marked documents Ex. P.1 to Ex. P.25 and M.Os.1 to 5 were also marked. On the side of the defence, no witness was examined and no documents was marked.

After the trial, the appellant/accused was convicted under Section 302 IPC and sentenced to undergo life imprisonment and also imposed a fine of Rs. 10,000/- and in default to undergo Imprisonment for one year; under Section 324 IPC (2 counts) and sentenced to undergo Imprisonment for one year for each count and also imposed a fine of Rs. 5,000/- for each count and in default to undergo Imprisonment for a period of 6 months for each count. Aggrieved by which, this Criminal Appeal has been preferred by the appellant/accused.

P.W.1 in his evidence, has deposed that the accused Periasamy is his son, however, he and his wife Pavazhakodi were separately living in their house and the accused Periyasamy and his wife Shanthi were living separately. He further deposed that at the time of occurrence, he sustained cut injuries on his left hand and his middle finger and ring finger and also on the left cheek and back of head. His wife, Pavazhakodi also sustained injuries on the left hand, right hand, cheek and head etc. Further, his daughter in law, Shanthi (PW2) also sustained injuries on her left hand and cut injury on her head.

P.W.12, who is Medical Officer in Tiruchengode Government Hospital, on 09.12.2010 deposed that when he was on duty, at about 8.10 p.m, one Palanichamy, aged about 65 years was brought to the hospital in 108 ambulance for treatment and that he told that at about 7 p.m, on the said date, his son, the accused herein assaulted him with aruval. On examination, he found the following injuries :

"1) A lacerated wound in Parieto occipital region 12 x 4 x 2 cm in size. Bone exposed.

2) A lacerated wound in right ear lobe 2 x 1 x 1 cm in size.

3) A lacerated wound in left index finger and left middle finger.

4) A lacerated wound in left cheek 2 x 2 cm in size."

For further treatment, he was sent to Namakkal Government Hospital, thereafter, sent to Salem Government Hospital and in the said hospital, he was found missing. The Accident Register is marked as Ex. P.4 and the Wound Certificate is marked as Ex. P.5. P.W.12 has further deposed that on the same day, at about 8.05 p.m, Pavazhakodi, aged about 55 years was brought in by 108 ambulance and that she told that at about 7 p.m, she had been assaulted by her son, the accused herein with aruval. On examination, he found the following injuries on her :

"1) A lacerated wound near left eye 5 x 2 x 1 cm in size - Bone exposed.

2) A lacerated wound in Right side Neck 4 x 2 x 1 cm in size.

3) A partially amputated in left hand.

4) A lacerated wound in Right hand 4 x 3 x 2 cm in size - Bone and tendon exposed.

5) A lacerated wound in left cheek 3 x 2 x 1 cm in size.

6) A lacerated wound in Right neck 3 x 2 x 2 cm in size."

Then, for further treatment, the said Pavazhakodi was taken to Namakkal Government Hospital and that the Accident Register was marked as Ex. P.6.

P.W.12, Medical Officer has further deposed that on 09.12.2010, at about 8.15 p.m, one Shanthi, aged about 34 years was brought to hospital and she said that in her house, her husband Periyasamy at about 7 p.m, assaulted her with aruval and on examination, he found the following injuries on her :

"1. A lacerated wound in left forearm 2 x 2 x 1 cm in size.

A lacerated wound just below the above wound - Bone exposed - fracture left forearm.

A lacerated wound in Right arm 3 x 2 cm in size.

A lacerated wound in Right parietal region 2 x 2 cm in size."

For further treatment, she was sent to Namakkal Hospital and on her own will, she was sent to Salem Hospital. The Accident Register was marked as Ex. P.7 and Wound Certificated was marked as Ex. P.8. P.W.12 has stated that the injuries sustained, as per Ex. P.4 to Ex. P.7 would have been caused by aruval (sickle), which is marked as M.O.1. The injuries sustained by Pavazhakodi, as per Ex. P.6 is sufficient to cause death. P.W.12 has stated that Palanichamy, Pavazhakodi and Shanthi were conscious at the time of examining them.

P.W.13, Village Assistant, at Melmugam village, deposed that on 14.12.2010 at about 1.30 p.m, Velur Inspector telephoned to him and requested P.W.13 and Village Administrative Officer (VAO) to come to Mohanur Diversion Road. As per his request, they went to the said spot, where, Inspector arrested the accused Periyasamy and he voluntarily gave confession between 1.30 to 2.30 p.m. During confession, the accused gave information that he has hidden the Aruval (M.O.1) in the thorny bush at punjai edaiyer vaikkal and he was taken to the place to produce the same and on the information, he was also taken to the place shown by the accused to thorny bush near punjaiedaiya vaikkal and from their, the accused took out and produced the Aruval (M.O.1). The Aruval was blood stained and the same was seized by mahazar and seizure mahazar, marked as Ex. P.10. The Aruval was marked as M.O.1. In the seizure mahazar, both P.W.13 and Village Administrative Officer has signed.

P.W.14, Medical Officer, Salem Government Hospital, deposed that on 11.12.2010, when he was on duty, Velur Police produced the body of one Pavazhakodi, aged about 50 years, with a request letter of the Police Inspector, to perform the postmortem and on the request, he commenced Postmortem, at about 11.15 a.m., on the said date. During Postmortem, he found the following injuries :

"Its condition then was rigor mortis present all over the body. Postmortem commenced at 11.15 a.m on 11.12.2010. It was a moderately nourished body of a female person.

A sutured incised wound seen over right temporal region extending to right occipital region of scalp- measuring 12 cms in length. O/D the edges are clean cut and acute angled.

A sutured incised wound seen over occipital region of scalp-6 cms below occipital protuberance-measuring 7 cms in length. O/D the edges are clean cut and acute angled.

A sutured incised wound seen over nape of neck-12 cms below occipital protuberace-measuring 6 cms in length. O/D the edges are clean cut and acute angled.

A sutured incised would seen over right side of back of neck-8 cms below occipital protuberance-measuring 5 cms in length. O/D the edges are clean cut and acute angled.

A sutured incised would seen over medical aspect of left cheek-1 cm below medical conthus of left eye-measuring 2 cms in length. O/D the edges are clean cut and acute angled.

A sutured incised wound seen over left frontal region extending to left temporal region of scalp-measuring 11 cms in length. O/D the edges are clean cut and acute angled.

A sutured incised wound seen over dorsal aspect of left wrist-encircling the entire circumstances of wrist-measuring 11 cms in length. O/D the edges are clean cut and acute angled.

A sutured incised wound seen over right upper back-transversely over the spine of scapula-measuring 11 cms in length. O/D the edges are clean cut and acute angled.

A sutured incised wound seen over upper back-transversely over the level of TI thoracic vertebrae-measuring 4 cms in length. O/D the edges are clean cut and acute angled.

A sutured incised wound seen over left upper back-transversely 2 cms above the spine of sacpula-measuring 6cms in length. O/D the edges are clean cut and acute angled.

A sutured incised wound seen over dorsum of right hand-''T'' shaped-Transverse LIMB measuring 5 cms and vertical limb measuring 3 cms in length. O/D the edges are clean cut and acute angled. Cut fracture of three carpal bones.

A wide open cut injury seen over right infra-axillary region-at the level of posterior axillary line-12 cms below the level of right clavicle-measuring 3 x 1 x 0.5 cms. O/D the edges are clean cut, everted and acute angled.

A sutured incised wound seen over right infra-axillary region-1 cm below the previous injury-measuring 6 cms in length. O/D the edges are clean cut and acute angled.

A wide open cut injury seen over extensor aspect of left forearm-6 cms above left wrist-measuring 5 x 1 cms x muscle deep. O/D the edges are clean out everted and acute angled (Antemortem).

Other findings :

O/D Head : Dark red contusion seen over right parietal eminence - 4 x 2 x 0.5 cms. Dura membrane-intact. Cranial vault-intact, brain c/s pale. Sub-Dural Haemorrhage seen over right cerebral hemisphere. Base of skull-intact.

O/D Neck : All Neck structures and hyoid bone-intact.

O/D Thorax : No ribs fracture lungs : - C/s -Pale, Heart, Normal in size chambers empty. Valves and coronaries-patent. Myocardium-normal great vessels-patent.

O/D Abdomen : 60 ML of brown coloured fluid with no specific smell mucosa c/s-pale liver spleen and kidneys-c/s pale. Bladder-empty, Genitalia-No injuries made out, uterus-atrophic cavity empty. Pelvis and spinal column-intact.

Viscera preserved and sent for chemical analysis.

Opinion :

Cause of Death : Died of Effects of multiple cut injuries

Time since Death : Within 24 Hours prior to Autopsy."

The Post-mortem certificate was marked as Ex. P.12 and the request letter was marked as Ex. P.11. P.W.14 deposed that the injuries 1 to 4 sustained by the deceased Pavazhakodi would have been caused by using M.O.1.

After the examination of witnesses, P.W.1 to P.W.18, the accused was questioned under Section 313 Cr.P.C and the accused denied the incriminating statements made by the witnesses and replied that he has been falsely implicated.

Learned Senior counsel appearing for the appellant/accused submitted that the alleged injured eye witnesses, P.W.1 and P.W.2 have turned hostile and did not support the prosecution case. According to the learned Senior counsel, the prosecution has not established the guilt against the appellant/accused beyond reasonable doubt. Hence, the trial Court could have acquitted the accused by giving benefit of doubt in favour of the appellant/accused.

Per contra, Mr.V.M.R. Rajendran, learned Additional Public Prosecutor submits that the evidence available on record is sufficient to establish the guilt against the appellant/accused beyond reasonable doubt, though the injured eye witnesses P.W.1 and P.W.2 and some other prosecution witnesses turned hostile. It is argued by the learned Additional Public Prosecutor that the deceased Pavazhakodi, after the occurrence, was taken to the Government Hospital, where, she was given treatment by the Doctor, P.W.14. In the AR copy, the Doctor has noted that he found the following injuries

"1) A lacerated wound near left eye 5 x 2 x 1 cm in size - Bone exposed.

2) A lacerated wound in Right side Neck 4 x 2 x 1 cm in size.

3) A partially amputated in left hand.

4) A lacerated wound in Right hand 4 x 3 x 2 cm in size - Bone and tendon exposed.

5) A lacerated wound in left cheek 3 x 2 x 1 cm in size.

6) A lacerated wound in Right neck 3 x 2 x 2 cm in size."

It is further stated that she was alleged to have been assaulted by her son on 09.12.2010 at about 7 pm by using sickle.

P.W.2, wife of the appellant/accused was also an injured eye witness and she has sustained following injuries :

"1. A lacerated wound in left forearm 2 x 2 x 1 cm in size.

A lacerated wound just below the above wound - Bone exposed - fracture left forearm.

A lacerated wound in Right arm 3 x 2 cm in size.

A lacerated wound in Right parietal region 2 x 2 cm in size."

In the AR copy, it is stated that she was assaulted by her husband, using sickle at the scene of occurrence.

P.W.1, Palanichamy, father of the appellant was also injured in the occurrence and sustained the following injuries :

"1) A lacerated wound in Parieto occipital region 12 x 4 x 2 cm in size. Bone exposed.

2) A lacerated wound in right ear lobe 2 x 1 x 1 cm in size.

3) A lacerated wound in left index finger and left middle finger.

4) A lacerated wound in left cheek 2 x 2 cm in size."

On account of the fatal injuries sustained by Pavazhakodi, wife of P.W.1, she died on 11.12.2010 in the Government Hospital. In the post mortem certificate, it has been stated by the Doctor that the death of Pavazhakodi could have been caused on account of the effects of multiple cut injuries. The post mortem certificate shows the injuries, which corroborates the averments made in the AR copy.

It cannot be disputed that there has been no natural death caused to the deceased Pavazhakodi, but it was only homicidal death, as stated by the prosecution. There is a single accused, who is none other than the son of the deceased, the appellant/accused herein. According to the learned Additional Public Prosecutor, though P.W.1 and P.W.2 have not disputed the fact that they were injured and taken to hospital along with the deceased Pavazhakodi, mother of the appellant/accused, they subsequently turned hostile, since P.W.1 is the father and P.W.2 is the wife of the appellant/accused. It being a brutal assault, using deadly weapon against the deceased, mother of the appellant/accused and also other injured witnesses. P.W.1 and P.W.2 on account of their close relationship, have not supported the prosecution case. However, the other evidence available on record would establish the guilt beyond reasonable doubt, as held by the court below.

Based on the confession statement, M.O.1, sickle (koduval) was recovered. The medical evidence would show that the injury found on the body of the deceased could have been caused by a deadly weapon like M.O.1, sickle (koduval). Though the confession statement given before the police is inadmissible in evidence, as per Section 25 of the Indian Evidence Act, the portion of evidence, leading to recovery of material objects is admissible. The said admissible portion of the confession statement is recorded and marked as Ex. P.9.

When the appellant/accused was questioned under Section 313 Cr.P.C, the appellant/accused has simply denied the incriminating circumstances available in the evidence of prosecution witnesses. He has stated that even the evidence of Doctor, P.W.12 is false.

Merely because some of the alleged eye witnesses turned hostile, on account of their close relationship with the appellant/accused, the Court need not hold that the guilt is not proved, when other sustainable evidence is available to establish the guilt beyond reasonable doubt.

As argued by the learned Additional Public Prosecutor, the appellant is the sole accused in the case and it is pertinent to note that there is no other motive for the Doctor and other witnesses to depose evidence against the appellant/accused. Even the evidence of P.W.1 and P.W.2 would not create a suspicious circumstance, that the injuries sustained them and the deceased could have been caused by some other person. The complaint Ex. P.1 was given by P.W.1, father of the appellant/accused and he has admitted the signature available in the complaint. As he turned hostile, the signature alone was marked as Ex. P.1. P.W.1, father of the appellant has categorically deposed that after the occurrence, the deceased, Pavazhakodi, mother of the appellant was taken in 108 ambulance to the Government Hospital, where he was given treatment along with the deceased and P.W.2

Merely because P.W.1 and P.W.2 turned hostile, while deposing evidence, the Court need not record acquittal, as there is substantial evidence available to establish the guilt of the accused. It is well settled proposition of law that "Man may lie but circumstance will not". In the instant case, there is no delay in taking the deceased, P.W.1 and P.W.2 to the Hospital. The occurrence had taken place only at the residence of the said witnesses and the appellant/accused. As found by the trial Court, there is no suspicion with regard to the prosecution case that the deceased had sustained injury, on the date of occurrence at the time, stated in the complaint and in the FIR.

The evidence of P.W.1 and P.W.2, father and wife of the appellant respectively would show that they have personal interest in protecting the appellant/accused, on account of their close relationship and they have not raised any other allegation against any other persons, though they were the affected parties in the occurrence along with the deceased. The Court below has discussed in detail and has come to a conclusion that the guilt is proved beyond reasonable doubt.

Having considered the entire circumstances, we are of the view that the guilt has been proved beyond reasonable doubt and accordingly, the criminal appeal is liable to be dismissed.

In the result, this Criminal Appeal is dismissed, confirming the Judgment and conviction and sentence, dated 27.07.2012 made in S.C. No. 88 of 2011 on the file of the learned Principal Sessions Judge, Namakkal.