Velmurugan vs State

M. Chockalingam, J.—The appellant is the sole accused in S.C. No. 39 of 2003 on the file of the learned Sessions Judge, Kanyakumari Division at Nagercoil, whereby he was charged for the offences under Sections 302 and 394 read with Section 397 IPC, tried thereunder, found guilty as per the charges and convicted and awarded with life imprisonment and also to pay a fine of Rs. 1,000/-, in default to undergo one year rigorous imprisonment for the former offence and seven years rigorous imprisonment and to pay a fine of Rs. 1000/-, in default to undergo one year rigorous imprisonment for the latter offence. Challenging the said conviction and sentence, the present appeal is before this Court at the instance of the accused.

The brief facts necessary, sans unnecessary facts, for the disposal of the appeal can be stated thus:

(a) P.W.1 Duraisamy is the husband of the deceased Sornam and the accused in this case is the brother''s son of P.W.1. P.W.1 had a house and in respect of which he executed a Will in favour of the accused. It is quite natural that the executant of the Will will have the right to enjoy the property till his life time. P.W.1 had no issues and he was threatened by the accused to give the property and in that circumstance the Will came to be executed. Prior to the occurrence, that was in August, 2001, the accused wanted to put four palmyrah rafters in the house of P.W.1 and that was objected to by both P.W.1 and his wife, since deceased and there arose a quarrel between them.

(b) On the date of occurrence, i.e. 14.09.2001, at about 8.00 a.m., the wife of P.W.1, since deceased, proceeded to the field earlier. P.W.1 also went to the field following his wife at a distance of 20 feet and at that time, when the deceased was crossing the coconut grove of P.W.11, P.W.1 witnessed the occurrence in which, the accused, who had a spade in his hand, attacked the wife of P.W.1 on her head and when she fell down the accused removed the gold ornaments (M.Os.1 and 2) worn by her and fled away from the scene of occurrence with the weapon of crime (M.O.3). This incident was also witnessed by P.Ws.6 to 8. Immediately, they took her in a car to Jeyasekaran Hospital at Nagercoil, where at about 8.45 a.m., P.W.2, the Doctor attached to the said hospital, on examination, declared her dead, following which they took the deceased back home. Thereafter, at 10.00 a.m., P.W.1 went to the respondent Police Station and reported the matter to P.W.12, the Sub-Inspector of Police, who in turn reduced the report of P.W.1 in writing and obtained his signature therein after read it over to him. Ex.P-1 is the complaint given by P.W.1.

(c) Based on Ex.P-1 complaint, P.W.12, the Sub-Inspector of Police, registered a case in Crime No. 199/2001 under Sections 302 IPC and prepared Ex.P-15, the First Information Report and despatched the same to the Court. On receipt of copy of Ex.P-15, FIR, P.W.14, the Inspector of Police, took up the investigation, proceeded to the place of occurrence, made an observation in the presence of witnesses and prepared Ex.P-10, the observation mahazar, attested by P.W.9 and another. He also prepared Ex.P-16, the rough sketch. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P-17, the inquest report. Following the inquest, he sent the body for postmortem through P.W.13, the constable, with Ex.P-2 requisition. Thereafter, from the occurrence place, P.W.14, the Inspector of Police, recovered M.O.6, the bloodstained earth and M.O.7, the sample earth, under Ex.P-11 mahazar attested by P.W.9 and another. He enquired witnesses and recorded their statements.

(d) P.W.3, the doctor attached to Colachel Government Hospital, on receipt of Ex.P-2, the requisition, conducted inquest on the dead body of Sornam on 14.09.2001 and after postmortem issued Ex.P-3, the postmortem certificate, wherein the doctor has opined that the deceased would have died of shock and haemorrhage due to head injury. After postmortem, P.W.13, the constable, collected the personal wearing apparels of the deceased and handed over them to P.W.14, the Inspector of Police. They are M.Os.4 and 5.

(e) Pending investigation, P.W.14, the investigator, arrested the accused on 15.09.2001, at about 6.00 a.m., in the presence of P.W.10 and another and when enquired, the accused volunteered to give a confessional statement which was recorded by P.W.14, admissible portion of it is marked as Ex.P-12, pursuant to which the accused produced M.O.3, the spade and the same was recovered under Ex.P-13 mahazar attested by P.W.10 and another. The accused also produced M.Os.1 and 2 series broken golden ornaments, M.O.8 Lungi, M.O.9 shirt and M.O.10 bloodstained paper and the same were recovered under Ex.P-14 mahazar attested by the same witnesses. Thereafter, P.W.14, subjected the accused to judicial custody. Pursuant to Ex.P-6 requisition made by the investigator, all the material objects recovered from the place of occurrence, from the body of the deceased and recovered pursuant to the confessional statement were placed before the Forensic Department for chemical examination through Ex.P-7, the letter of the court, which resulted in two reports, namely, Ex.P-8, the Chemical Examiner''s Report and Ex.P-9, the Serologist''s Report. P.W.15, the Inspector of Police, who took up the further investigation, examined some witnesses and recorded their statements. On completion of the investigation, P.W.15, the investigator, filed the final report before the concerned Magistrate Court.

The case was committed to the Court of Session and necessary charges were framed. To substantiate the charges levelled against the accused, the prosecution marched 15 witnesses as P.Ws.1 to 15 and relied on 17 documents ,marked as Exs.P-1 to P-17 as well as ten material objects, marked as M.Os.1 to 10. On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused denied them flatly as false. Though no defence witness was examined, one document, namely the Will dated 28.12.1989, was marked as Ex.D-1. The trial court heard the arguments advanced on either side, scrutinised the materials available and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty as per the charges framed, convicted him thereunder and imposed punishment as referred to earlier. Hence this appeal.

Advancing his arguments, Mr. V. Kathirvelu, learned Counsel for the appellant, made the following submissions.

(a) Firstly, though the prosecution marched four witnesses, namely P.Ws.1, 6, 7 and 8, as eye-witnesses to the occurrence, P.Ws.6 to 8 have turned hostile and did not support the prosecution case and thus the entire case of the prosecution rested upon the evidence of P.W.1, who is none else than the husband of the deceased and therefore his evidence requires careful scrutiny.

(b) All the possible reasons and circumstances would clearly indicate that P.W.1 could not be an eye-witness to the occurrence. According to the prosecution, the occurrence has taken place in the field belonged to P.W.11 at 8.00 a.m. on 14.09.2001 but, according to P.W.1, his wife went to the field earlier and he too went to the field after 20 minutes and in such circumstances it is highly doubtful whether he could have seen the occurrence.

(c) Further, in the instant case, according to P.W.1, he executed a Will in favour of the accused four years before the occurrence but, Ex.D-1 Will relied on by the defence would clearly indicate that the Will was executed in the year 1989 and thus it would be quite clear that P.W.1 has given only a false evidence.

(d) Learned Counsel would further add that in the instant case, according to the prosecution, the occurrence has taken place at 8.00 a.m. and the first information report came into existence at 10.00 a.m. and in turn the FIR reached the Court only at 2.35 p.m. and thus it would be quite clear that there was a delay in the FIR reaching the Court and the same remained unexplained by the prosecution and it would tell upon the prosecution and also clearly indicate that all kinds of embellishments have been made in order to rope the appellant/accused in the case.

(e) Further, the learned Counsel would add that in the instant case P.W.1''s evidence cannot be relied on for the simple reason, according to him, the injured was taken in a car to the hospital and on the way she was found dead and immediately brought back and he has not spoken anything about her taking to the hospital where P.W.2 was a doctor and on examination she was declared dead but, P.W.2 has deposed that the deceased was brought to the hospital and on examination she was found dead and therefore in this way it is highly doubtful whether P.W.1 could have seen the occurrence and took the injured to the hospital and thus his evidence is shrouded with all suspicious circumstances. Further, according to P.W.1, the accused gave only one blow to the deceased, but according to postmortem doctor, three injuries were found on the deceased and thus P.W.1 was not able to give account for the injuries sustained by the deceased and thus the medical evidence adduced by the prosecution is not in support of the prosecution.

(f) Advancing his further arguments, the learned Counsel would submit that even assuming that the prosecution has proved the fact that it was the accused who attacked the deceased at the time of occurrence, the act of the accused would not attract the penal provision of murder, since he had no intention to cause the death of the deceased. Had it been, the accused would have attacked the deceased indiscriminately with spade on all vital parts of the body but, according to P.W.1, he gave only one blow and thus the circumstance would clearly indicate that the accused had no intention or deliberately caused her death and hence his act would fall short of murder and this has got to be considered by this Court.

The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions.

The Court paid its anxious consideration to the submissions made on either side and also made a thorough and careful scrutiny of the available materials.

It is not the fact in controversy that following the incident that took place at about 8.00 p.m. on 14.09.2001, in the place of occurrence, as put-forth by the prosecution, the deceased Sornam, wife of P.W.1, was taken to the hospital where, on examination, she was declared dead by P.W.2, the doctor and thereafter, following an inquest by the investigator, the body of the deceased was subjected to postmortem by P.W.3, the postmortem doctor and according to the medical opinion given in Ex.P-3, the postmortem certificate, the deceased died of shock and haemorrhage due to head injury sustained by her. Apart from this, this fact was never questioned by the appellant/accused at any stage of the prosecution. Thus, the prosecution has proved this fact that the deceased died out of homicidal violence and therefore it has got to recorded so.

In order to substantiate its case that it was the accused who attacked the deceased Sornam with M.O.1 spade and caused her death, the prosecution rested its entire case on the evidence of P.W.1, though the prosecution examined three more witnesses, namely P.Ws.6 to 8, but they turned hostile. It is true that P.W.1 is none else than the husband of the deceased. It is settled proposition of law that merely because of the reason that an eye-witness to an occurrence is closely related to the deceased, his evidence cannot be discarded but the Court has to exercise the test of careful scrutiny before accepting the evidence of a related witness.

In the instant, P.W.1 has executed a Will in favour of the accused in the year 1989 and there is no material to show that the said Will was revoked and thus it will come into force only after the death of the executant. In the instant case, the Will did not come into force. On an earlier occasion, it was the accused who took some palmyrah rafters and wanted to place them in the house of P.W.1, to which P.W.1 and his wife, the deceased, were not amenable and thus they had some quarrel on that day. On the date of occurrence, according to P.W.1, the deceased went to the field early and he followed her and when he was going nearby his wife, he actually witnessed the occurrence in which the accused attacked the deceased with a space and when she fell down he removed the gold jewels worn by her and fled away from the place of occurrence. No reason or circumstance is brought-forth to establish or cast a doubt on the evidence of P.W.1. Further, P.W.1, immediately after the incident, took his wife to the hospital where she was declared dead by P.W.2, on examination and following the same P.W.1 went to the police station and also given Ex.P-1 complaint to P.W.12, the Sub-Inspector of Police, on the strength of which a case came to be registered and thus it would be quite clear, following the incident the first information has come into existence without any delay.

Now coming to the contention put-forth by the learned Counsel for the petitioner that P.W.1 could not have seen the occurrence, the reasons mentioned and narrated by him, in the opinion of the Court, cannot be the reasons to suspect the testimony of P.W.1. According to P.W.1, the accused gave only one blow but according to medical opinion three injuries were found. It is pertinent to point out that when a person is looking an incident like this, in which his wife is being attacked with a spade, no one could correctly give account towards the number of injuries sustained because he would be under the grip of fear and also panic.

The other contention of the learned Counsel for the appellant that P.W.1 could not have seen the occurrence, since he went to the field 20 minutes after his wife left, cannot be a reason to cast a doubt on the testimony of P.W.1 for the reason that nowhere P.W.1 has stated that immediately after her wife left to the field she was attacked by the accused but, on the contrary, he would state that after 20 minutes he left and when he was nearby to his wife at a distance of 20 feet, he witnessed that occurrence and he immediately took her to the hospital and the doctor who examined her declared her dead. All would go to show that without seeing the occurrence, in which his wife was attacked with a space, P.W.1 could not have taken his wife to the hospital and therefore the Court is unable to see any intervening circumstances to reject his testimony and in the instant case, the trial court marshalled the evidence proper and accepted the evidence. The medical evidence also stood in full corroboration to the ocular testimony.

Yet another circumstance, in the instant case, in the opinion of the Court, which is strong enough to establish the nexus of the accused with the crime is the recovery of M.Os.1 and 2 series golden ornaments and M.O.3, spade, the weapon of crime, on production of the accused following the confessional statement given by him. The evidence produced on this part of the prosecution case remained intact despite cross-examination in full. M.Os.1 and 2 series golden ornaments were actually identified by P.W.1 as they were actually worn by the deceased at the time of occurrence and he also deposed that they were removed by the accused. The accused was arrested shortly, i.e. on the next day of occurrence, from the time of occurrence and pursuant to his confessional statement what were all in his possession have been recovered. At this juncture, it is pertinent to point out that it is a case where the Court has to draw an inference/presumption u/s 114 of the Evidence Act. Immediately after the occurrence, the accused was found in possession and custody of the stolen articles and hence it is for the accused to explain as to how those articles belonged to the deceased came into his custody. It is true that such presumption is a rebuttable presumption. But, the accused has neither claimed those properties as of his nor explained as to how he came into possession and custody of those jewels belonged to the deceased and thus the presumption remained unrebutted. The said presumption drawn against the accused coupled with the evidence would be indicate of the fact that he was a thief. Thus, in the instant case, the accused has not only caused the death of the deceased but also removed all golden ornaments worn by the deceased. The direct of evidence of P.W.1 coupled with medical evidence and also recovery of M.Os. 1 to 3 would all clearly indicate that the prosecution case proved its case beyond reasonable doubt.

Now coming to the question of nature of the act of the accused, in the instant case, the Court has to necessarily disagree with the learned Counsel for the appellant. The argument of the learned Counsel, though looked attractive at the first instance, in the considered opinion of the Court, it cannot stand the scrutiny of law. In the instant case, it was P.W.1 who executed a Will in favour of the accused and it is needless to say that the Will will come into existence only after the life time of P.W.1 and till such time P.W.1 has got the right to enjoy the same and according to him he and his wife were living in the said house. Earlier there was a quarrel in the month of August, 2001 when the accused wanted to put some palmyrah rafters in the house, to which P.W.1 and the deceased were not agreeable and hence there was a quarrel and that quarrel cannot be a reason for the accused to act in this manner, after a period of 25 days. At the time when the deceased was proceeding to the field, he was attacked by the accused who was coming with a spade and it was seen by P.W.1 and there is no evidence or material to indicate that there was a quarrel preceding to the occurrence between the accused and the deceased and there was nothing to provoke the accused to attack an unarmed lady with a spade on her head which, according to the medical opinion, was the direct consequence of her death. Under such circumstances, though it was one blow, it was on the head of the deceased and it had the force to cause an injury which was the direct consequence of the death and, therefore, it cannot be done without intention. Hence the trial court was perfectly correct in bringing the act of the accused under the penal provision of murder and awarding life imprisonment. There is also ample evidence to sustain the charge u/s 394 read with Section 397 IPC. This Court finds no reason to upset the judgment of the trial court, except to sustain it.

Hence, the appeal fails and the same is dismissed. The conviction and sentence imposed on the appellant/accused by the trial are hereby confirmed.