Krishnamoorthy vs Inspector of Police

M. Chockalingam, J.—Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No. I, Tuticorin, made in S.C. No. 242 of 2008 whereby the sole accused/appellant stood charged u/s 302 of IPC, tried, found guilty of murder and awarded life imprisonment along with a fine of Rs. 1000/- and default sentence.

Short facts necessary for the disposal of this appeal can be stated as follows:

(a) P.W.1 is the wife of the deceased Arumuga Pandaram. He was a resident of North Street, Subramaniapuram. The accused was also residing in the same street. Prior to the occurrence, on an occasion, the deceased outraged the modesty of one Muthupechi, the sister of the accused. When she raised alarm, the deceased left the place. It came to the knowledge of the accused. Thereafter, there was often quarrel.

(b) On the date of occurrence that was on 22.5.2008, at about 2.00 P.M., when the accused and the deceased faced each other, there arose a quarrel.P.Ws.5 and 6 intervened, and they were pacified. After 15 minutes, when the deceased was going outside, the appellant/accused came with an aruval and attacked him on different parts of the body, and as a result of the same, the deceased fell down dead. This was witnessed by P.Ws.1, 3 and 4.

(c) P.W.1 and others proceeded the respondent police station where P.W.15, the Sub Inspector of Police, was present. P.W.1 gave a complaint at about 3.15 P.M., on the strength of which a case came to be registered in Crime No. 144 of 2008 u/s 302 of IPC. The printed FIR, Ex.P12, was despatched to the Court.

(d) On the same day at about 5.30 P.M., the Sub Inspector of Police proceeded to Tirunelveli Government Hospital, where he met the appellant/accused and also recorded his statement on the strength of which a case came to be registered in Crime No. 145/2008 under Sections 307 and 427 of IPC. The printed FIR, Ex.P13, was sent to the Court.

(e) P.W.16, the Inspector of Police of that Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P4, and also a rough sketch, Ex.P14. Then he recovered bloodstained earth and sample earth from the place of occurrence. He conducted inquest on the dead body of Arumuga Pandaram in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P15. The dead body was sent to the Government Hospital for the purpose of autopsy.

(f) On a requisition, P.W.2, the Assistant Surgeon, attached to the Government Hospital, Srivaikuntam, has conducted autopsy on the dead body of Arumuga Pandaram and has given a postmortem certificate, Ex.P3, with his opinion that the deceased would appear to have died 18 to 24 hours prior to postmortem due to shock and haemorrhage due to injury to vital organs.

(g) Pending the investigation, the accused was arrested at about 2.00 P.M. on 26.5.2008, in the presence of witnesses. He gave a confessional statement which was recorded. He was sent for judicial remand. All the material objects were sent for chemical analysis. Accordingly, they were subjected to, which brought forth two reports namely Ex.P8, the chemical analyst''s report, and Ex.P9, the serologist''s report.

(h) P.W.17, the Inspector of Police, took up the further investigation and on completion of the same, filed the final report.

The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 17 witnesses and also relied on 15 exhibits and 7 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 of Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. One witness was examined and one document was marked as Ex.D1 on the side of the defence. The trial Court heard the arguments advanced on either side, made scrutiny of the materials, took the view that the prosecution has proved the case beyond reasonable doubt and hence entered a judgment of conviction and sentenced him to imprisonment for life and fine. Hence this appeal at the instance of the appellant.

Advancing arguments on behalf of the appellant, the learned Counsel Mr. V. Kathirvelu would submit that in the instant case, the occurrence has taken place at about 2.15 P.M. on 22.5.2008; that it was claimed that the case came to be registered on a complaint given by P.W.1 at about 3.15 P.M., at the respondent police station; that the police station is situate within 2 kilometres from the place of occurrence and thus there was a delay.

Added further the learned Counsel that the eyewitnesses are P.Ws.1, 3 and 4; that P.W.1 is the wife of the deceased; that P.W.3 is the Panchayat President; that P.W.4 is the wife of the brother of the deceased; that in the instant case, the prosecution has not only failed to prove its case, but also suppressed all the material evidence in respect of Crime No. 145/2008; that immediately after the occurrence, the accused proceeded to the Government Hospital, Srivaikuntam, where he was medically examined and given treatment by D.W.1, the Doctor, and the accident register copy relating to the accused is marked as Ex.D1, wherein it has been clearly stated that the occurrence has taken place at about 2.30 P.M. just before his house at Subramaniapuram North Street, and he was attacked by two persons namely the deceased Arumuga Pandaram and also one Sankaran; that though it was admitted by the Investigator that Crime No. 145/2008 was registered u/s 307 IPC and other provisions of law against Sankaran, the investigation was taken up separately, and two charge sheets were laid; that as far as Crime No. 145/2008 is concerned, it was tried by the Assistant Sessions Court, Tirunelveli, in S.C. No. 284 of 2008 wherein the said Sankaran was shown as accused, and it also ended in acquittal; that though the transactions in Crime Nos. 144/2008 and 145/2008 were the same and inseparable, the Investigator has treated as two different transactions and filed two charge sheets, and thus the entire genesis of the occurrence and all the documents pertaining to Crime No. 145/2008, were suppressed before the trial Court, and under the circumstances, the prosecution did not enable the Sessions Court to find out the truth of the case.

Added further the learned Counsel that even in the same transaction, the accused has sustained grievous injuries, and he has lost his four fingers in one hand and also middle finger in the other hand; that P.W.6 has also categorically admitted that the accused also sustained injuries; that under the circumstances, the prosecution has not brought forth either the genesis of the occurrence or not even explained the injuries on the accused which were sustained by him in the same transaction and which were grievous in nature; that on the contrary, P.W.1 has categorically stated that the accused was not injured at all; that under the circumstances, there was suppression of material facts; that all would go to show that the prosecution was not fair enough in bringing the truth to the notice of the Court; that the trial Judge has committed an error in finding the appellant/accused guilty, and hence he is entitled for acquittal in the hands of this Cokurt.

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

It is not in controversy that one Arumuga Pandaram was done to death in an incident that had taken place at about 2.15 P.M. on 22.5.2008, in front of his house. Following the inquest made by the Investigator, P.W.16, the dead body was sent to the Government Hospital for postmortem. P.W.2, the Doctor, attached to the Government Hospital, after conducting autopsy, has given the postmortem certificate, Ex.P3. He was examined as a witness before the Court where he has categorically deposed that the deceased died due to shock and haemorrhage due to injury to vital organs, and the postmortem certificate was also to that effect. The fact that the deceased died out of homicidal violence was not a subject matter of controversy before the trial Court, and hence the trial Judge was perfectly correct in recording so.

In order to substantiate that it was the appellant/accused who attacked the deceased at the time and place of occurrence, the prosecution has relied on the evidence of P.Ws.1, 3 and 4 as eyewitnesses. P.W.1 is the wife and P.W.4 is a close relative of the deceased. P.W.3 is an independent witness. According to all, there was a complaint against the deceased that he outraged the modesty of the sister of the accused, and thereafter, there was a quarrel. Even there was a quarrel at about 2.00 P.M. on the date of occurrence, which was pacified, and then Arumuga Pandaram was just moving in the street. At that time, the accused got inside the house, came out with an aruval, attacked him and caused his death instantaneously at the spot. All the witnesses were put to cross-examination in full. It is pertinent to note that the evidence of all these witnesses remained unshaken. That apart, the evidence of these witnesses stood fully corroborated by the medical evidence, which was placed through the postmortem Doctor.

Now, at this juncture, the contentions put forth by the learned Counsel for the appellant have got to be considered. According to him, in the same transaction, the appellant/accused sustained injuries, and those injuries were not explained by the prosecution, and pursuant to his complaint, a case came to be registered in Crime No. 145 of 2008 by the very same police station; but all the documents pertaining to Crime No. 145/2008 were thoroughly suppressed, and hence the trial Judge could not find out the genesis or the truth of the prosecution case. On scrutiny of the entire materials available, this Court is of the considered opinion that the Investigator has done a correct investigation in the instant case. The occurrence, in the case on hand, has actually taken place at about 2.15 P.M. on 22.5.2008, in which P.Ws.1, 3 and 4 were eyewitnesses. It is pertinent to point out that on the very day, the very same Police Officer namely P.W.15, the Sub Inspector of Police, has gone to the hospital where the accused was under treatment, and he has given the narration of the entire story on the strength of which a case came to be registered in Crime No. 145/2008. The FIR in Crime No. 145/2008 is also placed in the hands of the Court, which is also perused. A perusal of the same would show that the prosecution story is mentioned therein. That apart, the accused has averred specifically therein that after the first occurrence in Crime No. 144/2008 was over, he first got inside his house and informed his wife that he was to meet the Advocate, and when he came outside the house, the brother of the deceased by name Sankaran, attacked him with an aruval in which transaction he sustained injuries. Thus it would be quite clear that the infliction of the injuries by the accused on the deceased Arumuga Pandaram and causing his death were one transaction, and afterwards, the attack made by Sankaran on the appellant/accused in which he sustained injuries, was an independent and separate transaction. Thus the Investigator after the registration of both the cases, has taken a correct view and has proceeded properly and thus filed two separate charge sheets. Under the circumstances, the contention put forth as if the prosecution has burked all the documentary evidence pertaining to Crime No. 145/2008, in the instant case, cannot be countenanced. The prosecution has actually placed the genesis of the present occurrence, the transaction also and also all the materials pertaining thereto.

It is true that the defence has examined D.W.1, the Doctor, and has also relied on Ex.D1, the accident register copy. A perusal of Ex.D1 would clearly indicate that at the time of the transaction, both the persons were present, and he sustained injuries. Now, at this juncture, merely because two names are mentioned by the accused as found in Ex.D1, it did not mean both the persons were present. From the available evidence, it would be quite clear that by the attack made by the accused, the deceased also died, and thereafter only, the second transaction has taken place after sometime. Reliance has got to be placed on the FIR registered in Crime No. 145/2008 which was at the instance of the appellant/accused and which clearly speaks of two independent transaction. Thus, this Court is convinced that it is a case where the prosecution has placed all the materials before the Court as far as the present transaction is concerned. It can be well stated that the prosecution has proved that it was the accused who attacked him with the aruval and caused his death instantaneously by suffice evidence.

After looking into the materials available, this Court is of the considered opinion that the act of the accused would not attract the penal provision of murder. It is a case where admittedly, the appellant/accused was provoked by the conduct of the deceased when he outraged the modesty of his sister while she was asleep, and there was a quarrel continuing between the deceased and the appellant. Even on the date of occurrence aslo, there was a quarrel at 2.00 P.M. on 22.5.2008.P.Ws.5 and 6 intervened and pacified the same. There was another quarrel also just immediately preceding the occurrence. Thus due to the provocation which was lingering in his mind, the appellant/accused has got inside the house, took the aruval and attacked him, and that too at the time of quarrel between them. Therefore, the act of the accused would not attract the penal provision of murder, but would be a culpable homicide not amounting to murder. He has got to be found guilty u/s 304 (Part II) of IPC, and awarding a punishment of five years Rigorous Imprisonment would meet the ends of justice.

Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court on the appellant/accused u/s 302 of IPC are set aside, and instead he is convicted u/s 304 (Part II) of IPC and is directed to undergo five years Rigorous Imprisonment. The sentence already undergone by him, shall be given set off. The fine imposed by the trial Court will hold good.

In the result, this criminal appeal is, accordingly, disposed of.