Sankara Thevar vs State

S. Ashok Kumar, J.—The appellant was the sole accused in S.C. No. 362 of 1999 on the file of the Principal Sessions Judge, Tirunelveli.

He was convicted for offences u/s 302 IPC, and sentenced to undergo imprisonment for life, and to pay a fine of Rs. 500, in default to undergo

rigorous imprisonment for three months, and also convicted for the offence u/s 324 IPC, and sentenced to undergo rigorous imprisonment for Six

months, both the sentences to run concurrently.

The brief facts of the prosecution case are as follows:

The deceased is one of the son-in-law''s of the accused. P.W.1 is younger brother of the deceased. P.W.2 is the wife of the deceased. P.W.3 is

mother of P.W.2 and wife of the accused. They were all residents of Pothaisuthi village near Kalakkad in Tirunelveli District. The accused

borrowed a sum of Rs. 10,000/= from one Mani, widow and for payment of interest he allowed the said Mani to cultivate the land. The deceased

and P.W.3 along with some hirelings threatened the said Mani to pay them Rs. 10,000/= for cultivating the land which culminated in lodging of a

complaint Ex.P.1 by the said Mani before the Kalakkad Police Station. On 8.2.1999, the Inspector of Police called the complainant Mani, the

deceased, P.W.1 and P.W.4 and another Durai, a hireling of the deceased and compromised the matter, by which the accused should pay Rs.

13,700/= to the said Mani within one month and on such payment the said Mani should hand over possession of the land to the accused. A

Muchalika was also signed by the accused, his wife P.W.3, the deceased and P.W.1, which is part of Ex.P.1. Two days later, i.e., on 10.2.1999,

when the deceased was standing in front of his house the accused attempted to beat him with iron pipe, P.W.1 intervened and sustained injury on

his left wrist. The deceased took to his heel, but the accused chased him and hit him repeatedly with the iron pipe, which caused the instantaneous

death. This occurrence took place at about 4.00 pm., Immediately, P.W.1 went to Kalakkad Police Station and lodged the complaint at 7.00 pm.,

The same was recorded by P.W.7, Grade I Police Constable who registered a case in Crime NO. 54 of 1999 u/s 302 IPC. P.W.12 Inspector of

Police took up the investigation and he went to the place of occurrence at 9.00 pm., and in the presence of Muruganand one Kannupandi he

prepared Ex.P.3 observation mahazar. Thereafter he also prepared rough sketch Ex.P.18. On the same day between 10.00 pm., and 12.00 pm.,

he conducted inquest on the body of the deceased in the presence of Panchayatdars and some witnesses. The inquest report prepared by him is

Ex.P.19. Thereafter he sent Ex.P.8 requisition to P.11, Medical Officer, Government Hospital, Kalakkad, to conduct autopsy on the body of the

deceased at 11.00 a.m., The Doctor found the following injuries:-

External injuries:-

1) A lacerated wound on he Head extending from above the right eye on the forehead to the right and top of Head above the right ear. The wound

runs from posterior to anterior. The edge was crushed. Depth is more on the posterior side. Size 10 cms x 3 cms x 4 cms. Scalp tissue injured.

Commuted irregular fracture of the right parietal bone 4 cms x 2 cms x 2 cms. Bone pieces are loosely present blood clots present. The underlying

brain compressed and damaged.

2) A lacerated wound on the top and front side of head running posterior to anterior. Depth more on the posterior side. Tissue irregular cut and

crushed 5 cms x 3 cms x 3 cms. Frontal bone linear fracture 3 cms x 1 cm. Blood clots present. The underlying brain compressed and damaged.

3) A lacerated wound on the right cheek near the eye 4 cms x 2 cms x 2 cms underlying bone maxilla fractured. Blood clots present.

4) A lacerated wound on the middle of forehead 2 cms x 1 cm x 1 cm blood clots present.

5) A lacerated wound right cheek 3 cms below the wound No. 3 2 cms x 1 cm x 2 cms. Wound enters into the mouth. The right upper 2 premolar

and 1st molar teeth broken All the wounds are ante mortem .

Internal Examination:

Abdomen: Viscera in situ. No internal injury. Stomach contains partly digested food. Liver pale. Kidney pale. Spleen pale, Large intestine fecal

matter. Bladder empty. Thorax: Viscera in situ No internal injury. Heart empty . Lungs pale. Head: injuries already described Brain pale.

Ex.P.15 is the postmortem certificate. He also gave the opinion that the deceased appears to have died of Head injury and brain damage.

P.W.11, Dr. Jayakumar, also treated P.W.1, who sustained injuries at the hands of the accused at 10.00 pm., on 10.2.1999. P.W.1 sustained

contusion on the back of left hand 3 x 2 x 2 cm. P.W.12 Inspector of Police, on the same day examined P.W.1, Chinnadurai, P.W.2 Santhanam,

P.W.3, Shanmughathai, P.W.4 Murugan, P.W.8, Paulraj, and witnesses Murugammal, Mani and Kannupandi and recorded their statements. On

11.2.1999 at 00.30 hrs he seized M.O.2 bloodstained earth, M.O.3, Sample earth from the place of occurrence under a cover of mahazar

Ex.P.4, attested by P.W.6 Lakshmanan and one Thaila Thevar. On the same day, he examined the attesting witnesses. On 12.2.1999, he

examined P.W.11, Doctor and recorded his statement. On 15.2.199 by 11.30 a.m., in the presence of P.W.5, Thaila Thevar and P.W.6,

Lakshmanan, near Idayankulam Bus Stop he arrested the accused. The accused volunteered to give a confession statement, admissible portion of

the said statement is Ex.P.6. In pursuance of the said confession , the accused took P.W.12 and other witnesses to the backside of the house of

one Poothapandi of Keezhadevanallur and produced M.O.1 iron pipe from a bush, which was seized under a cover of mahazar Ex.P.5. The

accused and case properties were remanded to judicial custody. He further examined P.W.11 Doctor on 3.6.1999 and recorded his statement.

After completing the investigation, on 5.6.1999 he filed the final report before the Judicial Magistrate, Nanguneri against the accused for alleged

offence u/s 302 IPC.

In the Sessions Court, Tirunelveli, on behalf of the prosecution, P.Ws. 1 to 23 were examined and Exs.P.1 to 20 and M.Os 1 to 6 were

marked. No witness was examined, nor any document was marked on behalf of the accused. When the accused was questioned u/s 313 Cr.P.C.,

with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses, the accused denied the same as false.

On a consideration of the oral and documentary evidence produced on behalf of the prosecution, the learned Sessions Judge came to the

conclusion that the charges framed under sections 324 and 302 IPC have been proved and convicted the accused as mentioned earlier. Hence this

appeal.

Mr. Mohideen Basha, learned counsel appearing for the appellant would contend that there is a delay in the FIR reaching the court since the

learned Judicial Magistrate has not noted the time of receipt of the FIR and the FIR contained all the details of the nature of injuries, it would show

that the FIR should have been prepared only after seeing the body and noting the injuries. The further contention of the learned counsel is that

P.W.1 is a chance witness and his evidence is highly suspicious and should not be acted upon and also that Ex.P.1 and P.20 have been prepared

for the purpose of the case.

Per contra, Mr. Radhakrishnan, Additional Public Prosecutor, vehemently contended that apart from P.W.1, younger brother of the deceased,

wife of the deceased P.W.2 and wife of the accused P.W.3 have also deposed about the occurrence and their presence at the scene of

occurrence cannot be disputed, because the occurrence took place in front of their houses.

As regards the contention of the learned counsel for the appellant that Ex.P.1 complaint, dated 1.2.1999 given by Mani and Ex.P.20,

compromise, dated 8.2.1999 are documents created for the purpose of this case, the said contention is not sustainable for the simple fact that the

deceased Sudalaikannu has also signed in the compromise which is found in the complaint Ex.P.1 itself. Therefore the Exs.P.1 and 20 could not

have come into existence after the FIR and therefore there is no reason to doubt Exs.P.1 and 20. The motive for the occurrence is said to be that

the accused has borrowed a sum of Rs. 10,000/= from the said Mani and in lieu of interest, he has permitted her to cultivate the land which was

not tolerable to the deceased and the wife of the accused. That is why ;the deceased and P.W.3, wife of the accused have threatened the said

Mani to give them Rs. 10,000/= which has culminated in lodging of a complaint by the said Mani before Kalakkad Police Station on 1.2.1999

which is marked as Ex.P.1. On 8.2.1999 a compromise has been arrived at in which the accused, P.W.1, the deceased, P.W.3 wife of the

accused have agreed to pay Rs. 13,700/= in one month and all of them have signed the compromise.

Apart from Exs.P.1 and P.20, P.W.12,Inspector of Police has also sent for the documents and deposed about the same. The accused got a

grievance against the deceased, because the said Mani was forced to lodge a complaint only due to the behaviour of the deceased in threatening

her and due to such motive he is said to have caused the death of the deceased by beating him repeatedly with the iron pipe. The occurrence is

spoken to by P.W.1, younger brother of the deceased, P.W.2, wife of the deceased and P.W.3, wife of the accused. P.W.2 is not only the wife of

the deceased, but also the daughter of the accused. The presence of P.W.s 2 and 3 at the place of occurrence cannot be termed as impossible,

nor those two witnesses can be called as chance witnesses. They are natural witnesses residing in their houses and the time of occurrence is also

4.00 pm., by which time, the ladies will be normally staying in the houses. Therefore, P.Ws 2 and 3 cannot be termed as chance witnesses or their

presence at the place of occurrence cannot be disputed.

Apart from the evidence of P.Ws 2 and 3 there is supporting evidence of P.W.1, whose evidence is cogent and corroborating the evidence of

P.Ws 2 and 3. Further, there is no need for the wife of the accused, P.W.3 to depose against her husband, if it is a false case foisted against him.

Apart from the ocular evidence of witnesses P.Ws 1 to 3, there is important circumstantial evidence i.e., on 15.2.1999 when the accused was

arrested, he has volunteered to give a confession statement, admissible portion of which is Ex.P.6 and in furtherance of the said confession he has

produced M.O.1 Iron Rod, which was seized under a cover of mahazar Ex.P.5. When the said Iron Rod and the case properties were sent for

chemical analysation, Ex.P.13, Serologists Report revealed that M.O.1 Iron Rod and M.O2, bloodstained earth contained human blood.

According to P.11, Dr. Jayakumar, who conducted autopsy, the injury No. 1, a lacerated wound on the head was fatal. Lacerated wounds found

on the head of the deceased and right cheek and middle of forehead could have been caused by M.O.1 iron pipe and also these injuries could

have caused the instantaneous death. The ocular evidence of P.Ws. 1 to 3 is supported by medical evidence and also by circumstantial evidence

namely recovery of M.O.1 weapon, which was found to contain human blood. We do not find any reason to doubt with the evidence of P.Ws 1 to

3, who are close relatives of the accused and we do not find any reason to interfere with the judgment and conviction of the accused. Hence this

appeal deserves to be dismissed and the same is dismissed accordingly.