(Judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Principal Sessions Division, Tiruvallur, made in S.C.No.111 of 2008 whereby the sole accused/appellant stood charged under Sections 450 and 302 of IPC, tried, found guilty as per the charges and awarded 10 years Rigorous Imprisonment along with a fine of Rs.1000/- and default sentence under Sec.450 IPC and life imprisonment along with a fine of Rs.1000/- and default sentence under Sec.302 IPC.
2.Short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the wife of the deceased Krishnamoorthy. P.W.2 is the brother and P.W.4 is also another sister of P.W.1. P.W.3 was a Carpenter by profession working in the house of P.W.1 at the time of occurrence. On the date of occurrence i.e., 18.1.2008 at about 4.30 P.M., when P.W.1 and her husband along with P.W.2 and the child were sitting in the house, the accused came there, got a chisel from P.W.3 who was doing carpentry work during the time, and uttering the words "you were responsible for myself not getting the property", attacked Krishnamoorthy with the chisel on the head and chest. He fell down in a pool of blood. Immediately, the accused ran away from the place of occurrence throwing the chisel on the ground.
(b) P.Ws.1 and 2 took Krishnamoorthy with severe injuries to KMC Hospital, where P.W.7 was the Doctor on duty. He noted the injuries found on him, and the wound certificate is marked as Ex.P4. The Doctor has also declared him dead. Thereafter, an intimation was given to P.W.12, the Inspector of Police, attached to the respondent police station who came to the hospital at about 7.15 P.M. P.W.1 gave Ex.P1, the complaint, to him, on the strength of which, P.W.12 registered a case in Crime No.71 of 2008 under Sec.302 of IPC. The printed FIR, Ex.P13, was despatched to the Court.
(c) P.W.12 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P7, and also a rough sketch, Ex.P14. Then he recovered the material objects from the place of occurrence including the chisel. He went to the mortuary, conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P16.
(d) On receipt of the requisition made, P.W.9, the Tutor, Department of Forensic Medicine, Government Kilpauk Medical College, Chennai, conducted autopsy on the dead body of Krishnamoorthy and has issued a postmortem certificate, Ex.P6, with his opinion that the deceased would appear to have died of asphyxia due to cut injury of the trachea, haemorrhage and shock.
(e) Pending investigation, the accused was arrested on 19.1.2008, and he gave a confessional statement. The same was recorded. He was sent for judicial remand. The witnesses were also taken to the Judicial Magistrate No.I, Poonamallee, for recording their statements under Sec.164 Cr.P.C. They were also recorded. All the material objects recovered from the place of occurrence and from the dead body, were subjected to chemical analysis by the Forensic Sciences Department which resulted in Ex.P19, the Serologist's report. On completion of investigation, the Investigator filed the final report.
3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 12 witnesses and also relied on 19 exhibits and 7 material objects. On completion of evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty and awarded the punishment as referred to above. Hence this appeal at the instance of the appellant.
4.Advancing arguments on behalf of the appellant, the learned Counsel Mr.R.Balasubramanian would submit that in the instant case, the prosecution has miserably failed to prove its case though marched P.Ws.1 to 3 as eyewitnesses; that it is true that P.W.1 is the wife of the deceased; that there was actually a property dispute between P.W.2 and the appellant/accused who are brothers in which the interference was made by the deceased unlawfully; that apart from that, it is actually an accident in which he fell down and had contact with the chisel which was on the floor, and he sustained injuries; that the accident has been converted into one of murder; that it is their intention that if the accused is sent to jail, P.W.2 could get his share in the property wholly; and that under the circumstances, they have given a false complaint.
5.Added further the learned Counsel that P.W.1 at the time of cross-examination has categorically admitted that she went to the police station and gave a complaint, which is marked as Ex.P1; that on the contrary, P.W.12, the Investigator, would claim that on receipt of the intimation he went to the hospital and got the complaint from P.W.1, which is marked as Ex.P1; that in the instant case, there are two contradictory statements; that originally, there was a complaint given to the police by P.W.1 and it was received by P.W.12 at the police station; that the same has been suppressed; that had it been really brought before the Court, it would have unfolded the truth; but, that has been suppressed; and that the non-production of the first complaint given by P.W.1 and received by P.W.12, was actually fatal to the prosecution case.
6.Added further the learned Counsel that as far as P.W.2 was concerned, he could not have seen the occurrence at all; that apart from that, he is an interested party to get entire property; that as far as P.W.3 was concerned, at the time of cross-examination, he has categorically admitted that he has not seen the occurrence at all, and hence his evidence was not useful to the prosecution; that apart from that, the trial was not properly conducted; that there was no proper appreciation of evidence by the trial Court; that P.W.1 has given a petition that she must be recalled for giving evidence since she was compelled to give such a false evidence; and that the same has not been considered by the trial Court.
7.The learned Counsel would further submit that it was P.W.7, the Doctor, who declared him dead; that Ex.P4 is the wound certificate wherein it is mentioned that a known person has assaulted him with a knife; but, according to the prosecution, it was a chisel; that a perusal of Ex.P4 would indicate that there are only two external injuries found; but, the postmortem certificate would show number of injuries; that all would go to show that the so-called eyewitnesses could not have seen the occurrence at all; that in the instant case, the claim of the Investigator was that the chisel was recovered from the place of occurrence; that when it was subjected to chemical analysis, it did not contain human blood at all; that all would go to show that the prosecution has miserably failed to prove its case, and hence he is entitled for acquittal in the hands of this Court.
8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its consideration on the submissions made.
9.It is not in controversy that one Krishnamoorthy, the husband of P.W.1, in an incident that had taken place at about 4.30 P.M. on 18.1.2008, was done to death. When he was taken to the KMC Hospital, it was P.W.7, the Doctor, who declared him dead. Following the registration of the case under Sec.302 IPC by P.W.12, the Inspector of Police, the inquest was made by him at the mortuary, and after the preparation of the inquest report, it was P.W.9, the Doctor, who conducted autopsy on the dead body and has given his opinion as a witness before the Court and also through the contents of the postmortem certificate, marked as Ex.P6, that he died out of asphyxia due to cut injury of the trachea, haemorrhage and shock. Now the contention put forth by the learned Counsel for the appellant is that it was not a homicidal violence; but, it was due to accident. It is the defence plea before the trial Court and before this Court also that when he fell down and had contact with the chisel which was on the ground, such injuries have been actually caused. A perusal of Ex.P4, the wound certificate, the earliest document, wherein the external injuries are noted, and also the postmortem certificate, Ex.P6, wherein the external injuries and also the corresponding internal injuries are noted, would clearly indicate that there was piercing of the chisel into the chest, and also the injury sustained on the head should have been caused by another person. Thus, the contention put forth by the learned Counsel for the appellant that the injuries were sustained due to accident has got to be brushed aside in view of the contents in the postmortem certificate and also the Doctor's evidence. It would be quite clear that the death was caused by homicidal violence as rightly recorded by the trial Court.
10.In order to establish that it was the accused who attacked the deceased with the chisel and caused the death, the prosecution examined P.Ws.1 to 3. P.W.1 is the wife and P.W.2 is the brother-in-law of the deceased. It is true that there was a property dispute earlier between the parties and also during the relevant time. But, at the same time, P.W.1 has categorically stated along with P.W.2 in one voice that they were actually in the house when P.W.3 was carrying on the carpentry work, and the accused came over there and attacked him on the head and also on the chest uttering "you were responsible for myself not getting the property", and he ran away from the place. P.Ws.1 and 2 despite cross-examination have withstood the test, and their evidence is cogent, convincing and acceptable by the Court.
11.As far as P.W.3 was concerned, the learned Counsel brought to the notice of the Court that he has well admitted at the time of cross-examination that he has not seen the occurrence at all. It is true that he has not seen the occurrence; but, he has categorically stated that he was doing carpentry work in the house of the deceased at the time of occurrence; that it was the accused who got the chisel from his hand and proceeded to the upstairs; that he also followed him when the accused went to the upstairs; and that he found the accused coming down from the upstairs. This would clearly indicate that the accused got the chisel from P.W.3, and after doing the act, he was coming down which was noticed by P.W.3. To this extent, the evidence of P.W.3 was available to the prosecution. In view of this evidence coupled with the evidence of P.Ws.1 and 2 who are eyewitnesses, this Court had no hesitation to accept the evidence since it inspires the confidence of the Court. That apart, the evidence of these eyewitnesses stood fully corroborated by the medical opinion canvassed through the postmortem Doctor and also the certificate given by him.
12.Now the contention put forth by the learned Counsel for the appellant is that whether Ex.P1 has come into existence either at the police station or at the hospital is doubtful. But, in the considered opinion of this Court, P.W.1 was the person who lost her husband, and it was she who along with P.W.2, took the deceased to the hospital. An intimation has also been received by P.W.12 when he was in the police station. He rushed to the KMC hospital at about 7.15 P.M. and got Ex.P1 from P.W.1. Ex.P1 was the only complaint given as spoken to by P.W.1. Whether it was received at the hospital or at the police station does not make anything much since it was the only complaint given by P.W.1 and received by P.W.12, and on the strength of the same, a case came to be registered.
13.Apart from the above, the learned Counsel would submit that P.W.1 gave a petition before the trial Court at the time of the trial for reopening her evidence. After the evidence was over and the matter was ripe for arguments, a petition was filed, and hence it cannot but be under compelled circumstances. In the instant case, the trial Court has conducted trial properly, and for cross-examination, full opportunity has been given, and the witnesses have been examined. No infirmity is noticed by this Court.
14.Above all, the discrepancy in the external injuries found in Ex.P4, the wound certificate, and in Ex.P6, the postmortem certificate, cannot in any way advance the case of the defence for the simple reason that P.W.7, the Doctor, who medically examined the body of Krishnamoorthy has declared him dead immediately, and hence he has noted only a few injuries. But, within a short span of time, the postmortem has been conducted. Under the circumstances, there is nothing to doubt the same.
15.It remains to be stated that at the time when the occurrence has taken place, there was nothing provocative, nor was there any quarrel. But, it was the accused who went over there, got the chisel from P.W.3, attacked the deceased on the head and also on the chest causing instantaneous death and ran away from the place which is clear from the ocular testimony which stood fully corroborated by the medical opinion. Under the circumstances, the trial Court was perfectly correct in accepting the case of the prosecution, finding him guilty and awarding the punishments as stated supra. Nothing is found to disturb the judgment of the trial Court either factually or legally.
16.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court. Consequently, connected MP is also dismissed.
nsv To:
1.The Principal Sessions Judge Tiruvallur
2.The Inspector of Police R-9, Valasaravakkam Police Station Chennai 89, (Crime No.71/2008)
3.The Public Prosecutor, High Court, Madras