Thangaraj vs The State

M. Chockalingam, J.—The sole appellant challenges the judgment of the I Additional District and Sessions Division (PCR Court),

Tiruchirapalli made in S.C. No. 191 of 2006, whereby the appellant herein, who was shown as A-1, along with two others ranked as A-2 and A-

3, stood charged under Sections 341 and 302 r/w Section 34 IPC. On trial, A-1 was found guilty u/s 302 r/w Section 34 IPC and was sentenced

to undergo life imprisonment and to pay a fine of Rs. 1000/-, in default to undergo one month R.I. The second accused was found guilty u/s 326

IPC and was sentenced to undergo 6 months RI and to pay a fine of Rs. 1000/-, in default to undergo one month R.I. The third accused was

found guilty u/s 324 IPC and was sentenced to undergo three months RI and to pay a fine of Rs. 1000/-, in default to undergo one month RI. The

accused were acquitted of the charge u/s 341 IPC. Hence, this appeal has arisen at the instance of the appellant herein/first accused.

The short facts necessary for the disposal of this appeal could be stated thus:

a) P.W.1 is the brother of the accused. The deceased Chinnasami had three sons. First son is the appellant herein/first accused. The second son is

one Selvaraj and the third son is P.W.1. The second accused is the paternal uncle''s son and the third accused is the friend of the second accused.

Chinnasami divided the properties into three equal shares, but the first accused was not satisfied with that division and he was quarreling for the

same. Thereafter, the father agreed to allot half acre extra, but he was not satisfied. On 4.5.2006, the first accused along with two others attacked

Selvaraj and he was injured. He was taken to the Government Hospital, Tiruchirapalli. On the same day night, P.W.1, the deceased and others

returned home and stayed in their house.

b) On 5.5.2006 at about 4.00 a.m., when Chinnasami went outside to attend the call of nature, P.Ws.1,2 and 3 were inside the house and they

heard a distressing cry. When they came out, they found the first accused attacking the deceased with aruval and the other accused also attacked

the deceased with spear and stick. Immediately on seeing the witnesses, the accused fled away from the place of occurrence.

c) P.Ws took the deceased to the Government Hospital, Manapparai, where P.W.8 the Doctor, who was on duty at that time, gave first aid to him

and issued Ex.P.10, the Accident Register. The deceased was referred to the Government Hospital, Tiruchirapalli and on the way to the

Government Hospital, Tiruchirapalli, the deceased died.

d) P.W.10, the Sub Inspector of Police, on receipt of the intimation from the Government Hospital, Manapparai, went there and recorded the

statement of P.W.1, which was marked as Ex.P.1. On the strength of Ex.P.1, he registered a case in Crime No. 64 of 2006 under Sections 341,

323 and 302 IPC. Ex.P.11, the F.I.R. was despatched to the Court.

e) On receipt of the copy of the F.I.R., P.W.13, the Inspector of Police, took up the investigation, proceeded to the spot and made an inspection

in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.15, the rough sketch. He also recovered the

bloodstained earth and sample earth under a cover of mahazar. Then, he went to the Government Hospital, Manapparai and conducted inquest on

the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.17, the inquest report. The dead body was

sent for the purpose of autopsy.

f) P.W.11, the Doctor attached to the Government Hospital, Manapparai, on receipt of the requisition, has conducted autopsy on the dead body

of the deceased and has issued Ex.P.12, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of

shock and haemorrhage due to the injuries sustained.

g) P.W.14, the Inspector of the Police, took up further investigation. He arrested all the accused on 6.5.2006 at 7.30 a.m. in the presence of the

witnesses. The first accused voluntarily came forward to give a confessional statement, which was recorded in the presence of the witnesses, the

admissible part of the which was marked as Ex.P.18. Pursuant to the same, he produced M.Os.1 to 3, the weapons of crime, under a cover of

mahazar. The accused were sent for judicial remand. All the material objects recovered from the place of occurrence, from the dead body of the

deceased and the M.Os recovered from the accused were subjected to chemical analysis by the Forensic Science Department, which resulted in

two reports, namely Ex.P.20, the Serologist''s report and Ex.P.21, the Biological report. 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. In order to substantiate the charges, the prosecution

examined 14 witnesses and also relied on 22 exhibits and 6 M.Os. On completion of the evidence on the side of the prosecution, the accused

were questioned u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as

false. No defence witness was examined. The trial court, after hearing the submissions made on both sides and looking into the materials available,

took the view that the prosecution has proved the case beyond reasonable doubt and has found the accused guilty as stated above and awarded

punishments as referred to above. Hence, the first accused has brought forth this appeal before this Court.

Advancing arguments on behalf of the appellant, the learned Counsel would submit that the occurrence has taken place on 05.05.2006 at about

5.00 a.m., according to the prosecution; that three witnesses were examined as occurrence witnesses, who are P.Ws.1 to 3; that P.W.1 is the son

of the deceased. P.W.2 is the cousin brother of P.W.1 and P.W.3 is the cousin sister of P.Ws.1 and 2; that they are close relatives of the

deceased and they are also partisan witnesses; that if the test of careful scrutiny is applied, the lower court should have rejected their testimony;

that actually Selvaraj, the son of the deceased, was attacked by the accused on 04.05.2006 and thus, he was injured; that he was taken to the

hospital and was under treatment; that neither the said Selvaraj was examined nor any records were produced by the prosecution; that from the

evidence of P.W.2, it would be quite clear that P.W.1 was in the hospital to look after the said Selvaraj and hence P.W.1 could not be in the

residence at the time of occurrence, which has taken place at about 5.00 a.m. on 05.05.2006 and thus, P.W.1 could not have been present at all.

Added further the learned Counsel that there was variation as to the place and time of occurrence; according to P.Ws.2 and 3, the occurrence

has taken place at about 5.00 a.m.; that according to P.W.1, the occurrence has taken place at about 4.00 a.m.; that as per Ex.P.10, the Accident

Register, the occurrence has taken place in the house of the deceased, but according to the prosecution witnesses, the occurrence has taken place

on the southern side of the house of the deceased and thus, the place of occurrence would also differ and hence both P.Ws.2 and 3 also could not

have seen the occurrence all; and that it would be quite clear that there were lot of inconsistencies in the evidence of these two witnesses.

The learned Counsel would further submit that the material objects recovered from the place of occurrence, from the dead body of the

deceased and the material objects recovered from the accused were subjected to chemical analysis; that no bloodstains were found in the aruval,

which was alleged to have been recovered from the accused pursuant to the confessional statement; that in the instant case, the medical opinion did

not support the ocular testimony; that according to P.Ws.1 to 3, the deceased had a cup of tea before the occurrence, but the post-mortem

certificate would indicate that the stomach was found empty; that the time of occurrence seems to be differ and thus, P.Ws.1 to 3 could not have

seen the occurrence at all; that the arrest and recovery witnesses, namely P.Ws.6 and 7 have turned hostile; that all put together would indicate that

the prosecution has not proved its case beyond reasonable doubt and hence the appellant/first accused is entitled for an acquittal in the hands of

this Court.

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

made.

It is not in controversy that one Chinnasamy, the father of P.W.1, following an incident that took place on 05.05.2006, was originally taken to

the Government Hospital, Manapparai and then, he was taken to the Government Hospital, Tiruchirappalli, but when he was taken to the

Government Hospital, Tiruchirappalli, he died. Following the inquest conducted by the Investigating Officer, the dead body was subjected to post-

mortem by P.W.11, the Doctor, who has issued Ex.P.12, the post-mortem certificate, wherein he has opined that the deceased would appear to

have died of shock and haemorrhage due to the injuries sustained. So far as this fact is concerned, there was no quarrel and hence, it has got to be

recorded so.

In order to substantiate the fact that it was the first accused/appellant herein who cut the deceased with aruval and caused his death, the

prosecution examined P.Ws.1 to 3. From the evidence of P.W.2, it would be quite clear that P.W.1 was very well available in the hospital.

P.Ws.2 and 3 have categorically deposed that they also went to the hospital along with Selvaraj, who was attacked by the accused on 04.05.2006

and after leaving him in the hospital along with P.W.1, they came back to the house and thus, they were staying in the house along with

Chinnasamy during night. According to P.Ws.2 and 3, when Chinnasamy went to attend the call of nature at about 5.00 a.m., they heard a

distressing cry and they came out and saw the first accused attacking the deceased with aruval. At this juncture, the question of identity of the

accused would not arise. In the instant case, the occurrence has taken place in the month of May and there was twilight also. Further, P.Ws.2 and

3 knew the first accused/appellant, since they are close relatives. They have also clearly spoken that they were able to see the first accused

attacking the deceased with aruval. This fact was also brought to the notice of P.W.8, the Doctor immediately within a short span of time. A

perusal of Ex.P.10, the accident register would clearly indicate the place and time of occurrence.

The contention of the learned Counsel for the appellant is that as per the case of prosecution, the occurrence has taken place on the southern

side of the house of the deceased, but as per Ex.P.10, the Accident Register, the occurrence has taken place in the house. This Court is unable to

see any significant difference between these two for the simple reason that when the occurrence has actually taken place, according to witnesses,

the deceased came out to attend the call of nature. Thus, it is natural for P.Ws to say that the occurrence has taken place in the house and

therefore, it will not in any way affect the prosecution case.

Further, the earliest document Ex.P.10, the Accident Register would indicate the time and place of occurrence and thereafter, the case was

registered by P.W.10, the Sub Inspector of Police. The further contention of the learned Counsel for the appellant is that the deceased had tea

before the occurrence, but as per the post-mortem certificate, his stomach was found empty. It is to be pointed out that the occurrence has taken

place at about 5.00 a.m. when he went to attend the call of nature. From the evidence of P.Ws.2 and 3, the deceased had tea well before the

occurrence. Thus, in the opinion of the Court, this by itself cannot be the piece of evidence to reject the prosecution case.

Added further, the medical opinion was also in support of the prosecution case. It is true, both witnesses have been examined for the arrest

and recovery of weapons of crime, who are P.Ws.6 and 7, but they have turned hostile. But, the ocular testimony projected by the prosecution

through the eyewitnesses stood corroborated with the medical opinion. Thus, in the instant case, the lower court has considered all the aspects and

found the accused/appellant guilty of murder and awarded life imprisonment. It was a case of patricide and the occurrence has taken place at

about 5.00 a.m. and the accused has attacked his father with aruval. All would go to show that his act was a preplanned one and under these

circumstances, the lower court has found him guilty and awarded life imprisonment. This Court is unable to notice anything to disturb the findings of

the lower court, both factually and legally. Accordingly, this criminal appeal is dismissed.

Ms. Vijaya Shanthi, Amicus curiae counsel is entitled to get remuneration from the Legal Service Committee, Madurai.