(The judgment of the court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Principal Sessions Judge, made in S.C.No.59 of 2005, dated 29.09.2006, whereby the sole accused/appellant stood charged, tried and found guilty for an offence under Sections 341 and 302 IPC and sentenced to undergo Rigorous Imprisonment for one month and to pay a fine of Rs.500/- in default to pay fine amount to undergo Rigorous Imprisonment for one week for the offence under Section 341 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- in default to undergo Rigorous Imprisonment for three years for the offence under Section 302 IPC. The sentences are to run concurrently.
2. The short facts necessary for the disposal of the prosecution case could be stated thus:-
a) P.W.1 is the father of the deceased one Ramkumar. He had two sons, namely, the deceased and Lakshmanakumar. P.W.1 owned a tractor, which was used for their own sake as well as for hire purpose. The accused/appellant was the next field owner. P.W.8, Vasanthi, the wife of the deceased, and the accused/appellant were working with P.W.1. Lakshmanakumar had illicit intimacy with P.W.8. This illicit intimacy went to the knowledge of the accused/appellant, and he warned his wife. Despite his warning, their illicit intimacy continued, as a result of which, P.W.8 went to her parental house. A Panchayat was convened in this regard, and in that panchayat P.Ws.9 and 10 were panchayatdars. They took a decision that Lakshmanakumar should not enter into the village for having illicit intimacy with Vasanthi. During the course of the panchayat, the accused/appellant took a vow that he would revenge and finish off any one of the members of the family of P.W.1. While the matter stood thus, on the date of occurrence i.e. 30.08.2001, at about 6.30 hrs, P.Ws.2 and 3 were travelling in the trailor of the tractor, which was being driven by the deceased, Ram Kumar. When they were all just crossing the field of Kamatchipuram, Madalimuthu, they found the accused/appellant coming in the opposite direction. He waylaid the tractor and asked the deceased to get down. Accordingly, when the deceased was getting down, the accused/appellant, all of a sudden, attacked him indiscriminately, gave 16 blows on the body, caused death instantaneously and fled away from the place of occurrence. P.Ws.2 and 3 witnessed the entire occurrence.
b)Immediately, the matter was informed to P.W.1, the father of the deceased. P.W.1 proceeded to the respondent Police Station, where P.W.15, the Sub-Inspector of Police was on duty. He gave a complaint, Ex.p.1, on the strength of which, a case came to be registered in Crime No.751 of 2001 under
Section 302 IPC. Ex.P.9, the printed FIR, along with Ex.P.1, were sent to the concerned Judicial Magistrate's Court.
c)On receipt of the copy of the FIR, P.W.16, the Inspector of Police, took up investigation, proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared Ex.P.10, the Observation mahazar, and Ex.P.12, the rough sketch. Further, he recorded the statement of the witnesses. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared an inquest report,Ex.P.11.
d)The dead body of the deceased was sent to the Government hospital, for the purpose of autopsy. P.W.7, the Doctor, attached to Dindigul Government Hospital, on receipt of the requisition Ex.P.4, has conducted autopsy on the dead body of the deceased and issued Ex.P.5, the post-mortem certificate, wherein he gave an opinion that the deceased would appear to have died out of shock and haemorrhage and due to the injuries sustained between 12 and 14 hours prior to autopsy.
e) The investigator arrested the accused/appellant and he came forward to give a confessional statement voluntarily which was recorded in the presence of two witnesses, namely, P.W.5, the Village Administrative Officer, and one Velusamy. The admissible part of the said confession was marked as Ex.P.2. Consequent upon the same, he produced M.O 1, Aruval, which was recovered in the presence of the witnesses under a cover of Ex.P.7, mahazar.
f) The accused/appellant was sent for judicial remand, and all the material objects recovered from the place of occurrence and from the dead body of the deceased, were sent for chemical analysis pursuant to a requisition, Ex.P.12, given by the Investigating Officer to the concerned Judicial Magistrate. Two reports were received. One is Ex.P.15, the Chemical analyst's report, and the other is Ex.P.16, the Serologist's report. On completion of the investigation, the Investigating Officer has filed the final report before the concerned court, which in turn has committed the case to the court of sessions and necessary charges were framed, and the case was taken up for trial.
g) In order to substantiate the charges, at the time of trial, the prosecution examined 16 witnesses and relied on 15 exhibits and 6 M.Os. On completion of the evidence on the side of the prosecution, the accused/appellant was questioned under
Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. No defence witness was examined. After hearing the arguments of the counsel and looking into the material available meticulously, the lower court, took the view that the prosecution has proved the case beyond reasonable doubt and found him guilty and awarded the punishment as referred to above. Under these circumstances, this criminal appeal has arisen at the instance of the accused / appellant.
3.Advancing arguments on behalf of the appellant, Ms.V.Jeyarani, in her sincere attempt of assailing the judgment of the Court below, made the following submissions.
a)The prosecution rested its case on the direct evidence by marching two witnesses, namely P.Ws. 2 and 3 as occurrence witnesses. Though P.Ws.2 and 3 claimed to be occurrence witnesses, their evidence is not only inconsistent to each other but also self-contradictory. According to them, they were sitting in the trailor annexed to the tractor driven by the deceased. At the time of occurrence, the accused/appellant armed with an aruval, waylaid them and asked the deceased to get down. While getting down from the tractor, the accused/appellant began to cut indiscriminately the deceased and caused death instantaneously. Both P.Ws.2 and 3 admitted that they had crow bar, spade and also other weapons available in the tractor. Had it been true that they have witnessed such an occurrence, they would have immediately gone to the rescue of the deceased, when the deceased was attacked indiscriminately by the accused. However, they were only passive spectators and therefore, they could not have been the occurrence witnesses at all. Further, the occurrence has taken place at night hours and there was no light at all. When such is the position, P.Ws.2 and 3 could not have seen the occurrence at all.
b)Added further, the learned counsel that according to the prosecution, one Lakshmana Kumar, the son of P.W.1, had developed illicit relationship with Vasanthi, the wife of the accused/appellant. The said Vasanthi, originally in the alleged FIR, was mentioned as Sundari and thereafter, it was corrected as Vasanthi. Basically, it casts a strong doubt on the FIR itself.
c)Further, there was a Panchayat, in which P.Ws.9 and 10 , were panchayatdars regarding the illicit intimacy between the accused/appellant and the said Lakshmankumar. At the time of investigation, P.W.10, could not say about the time and place of panchayat and hence, his evidence is of no use, and does not support the prosecution case. Soafar as P.W.9 was concerned, according to him, there was no panchayat at all. The actual position is that, all of them met in a tea stall and had a discussion about the affairs of the accused/appellant and Lakshmankumar and the respective parties were warned by the Panchayatdars. Therefore, this would clearly reveal that there was no panchayat convened. But, according to the prosecution, accused took a vow at the time of panchayat to finish off any one of the family members of P.W.1. Nothing is found in Ex.P.1. Thus, the entire episode of panchayat was nothing but a false.
d)Added further, in the instant case, there was no reason or motive for the accused/appellant to attack the deceased Ramkumar, who had nothing to do with the illegal intimacy of his wife, since he knows very well that only his brother Lakshmanakumar had illicit intimacy with his wife. Therefore, that part of the prosecution case that the accused/appellant attacked the deceased following the motive, was nothing but false and it was made in order to strengthen the prosecution case.
e)According to the prosecution, the accused/appellant waylaid the deceased, while he was driving the tractor, in which P.Ws.2 and 3 were travelling. According to the investigator, bloodstain was found in the tractor. For the reasons best known to the prosecution, neither the tractor was recovered, nor the deposit of bloodstain found in the tractor was sent for chemical analysis. The non-recovery of the tractor was fatal to the prosecution case.
f)Added further, the doctor P.W.7, through whom a post-mortem certificate was marked, has spoken as many as 16 number of injuries that were found on the deceased. If that be so, there would be sprinkling of blood in the clothes of the accused/appellant. However, that was not recovered by the investigator.
g)Added further, the medical evidence did not support the prosecution case at all. If Serologist's Report is looked into carefully, the recovery of material objects made from the place of occurrence,i.e.bloodstain, did not tally with that of blood group, what is found in the other material objects. Therefore, the occurrence as put forth by the prosecution would not have taken place at all and there was a wordy quarrel between the accused/appellant and the deceased. Thus all would go to show that the prosecution has not proved the case beyond reasonable doubt. Even assuming that the prosecution proved the fact that it was the accused/appellant who attacked the deceased and caused the death of Ram Kumar, the act of the accused would not attract the penal provision of murder. The act of the accused is neither intentional nor premeditated. Following the wordy quarrel, this occurrence has taken place, as a result of which, the deceased met with a tragedy. Thus, it would be only culpable homicide not amounting to murder. Under the circumstances, the act of the accused is not one of murder, and this legal aspect has to be considered by the Court.
5.The court heard the learned Additional Public Prosecutor on the above contentions.
6.The court has paid its anxious consideration on the submissions made and also scrutinized the materials available.
7.It is not in controversy that the deceased Ramkumar, son of P.W.1, was done to death, in an occurrence that took place on 30.08.2001, at about 9.30 p.m. In order to prove the same, the prosecution to its advantage had two witnesses, namely, P.Ws.2 and 3. The occurrence has taken place not during night hours, as put forth by the learned counsel for the appellant, but during twilight, namely it has taken place at 6.30 p.m. P.Ws.2 and 3 clearly claimed that the accused/appellant belonged to the same place and they have known him already. This fact was not questioned by the accused/appellant. Thus, it would not be difficult for P.Ws.2 and 3 to identify the accused/appellant at the time and place of occurrence. P.Ws.2 and 3 in one voice have spoken to the fact that when they were coming in the tractor and nearing in the place of occurrence, it was the accused/appellant who waylaid them and asked the deceased to get down. While the deceased was getting down, the accused/appellant cut him with aruval indiscriminately. This was witnessed by P.Ws.2 and 3. Much comment was made on the evidence of P.Ws.2 and 3 stating they they could not have been passive spectators, if such an occurrence has taken place, and that too, when crow bar, spade and other weapons were very well available in the tractor. This contention cannot be accepted for the reason that the frame of mind and what is passing in the mind of the individuals would differ from person to person. P.Ws.2 and 3, had they intervened, would have also met with the same result. Due to fear, they did not go nearby the place of occurrence. Merely because they have not gone for rescue of the deceased, it cannot be stated that they were not eye witnesses, which cannot be accepted in any way. Infact, their conduct is to be noted in this case. Immediately after the occurrence, P.Ws.2 and 3 informed to P.W.1, the father of the deceased, who in turn, went to the Police Station and lodged a complaint, Ex.P.1. He has narrated the entire incident as witnessed by P.Ws.2 and 3. Thus, it leaves nodoubt in the mind of the Court that P.Ws. 2 and 3 were the eye witnesses.
8.As far as the medical evidence is concerned, it stood fully corroborated with the ocular testimony, projected through P.Ws.2 and 3. According to the doctor, 16 injuries were found, and it should have been caused by aruval, the weapon of crime. Apart from this, one added circumstance in favour of the prosecution, is that there was recovery of M.O.1, aruval, the weapon of crime, pursuant to the confessional statement given by the accused/appellant in the presence of the Village Administrative Officer, who has been examined in this respect. This weapon of crime was sent for chemical analysis to the forensic department along with M.Os recovered from the dead body of the deceased. The Serologist's Report would clearly indicate that these M.Os recovered from the dead body of the deceased, and the weapon of crime produced by the accused/appellant, contained the same blood group. Thus, the scientific report was fully in favour of the prosecution case.
9.Now coming to the contention put forth by the learned counsel for the accused/appellant as to the recovery of the tractor, this Court is able to see force in the contention. The tractor which was used and driven by the deceased at the time of occurrence, in which, P.Ws.2 and 3 claimed to have travelled, should have been recovered. This was the irregularity committed by the investigator. In the opinion of the Court, this irregularity cannot shake the prosecution case at all, in view of the strong evidence available and the facts as narrated above.
10.The next contention of the learned counsel for the appellant is that the accused/appellant's clothes were not recovered by the investigator, when the accused/appellant produced the weapon of crime. It casts a doubt on the prosecution case. In the opinion of the Court, the non-production of clothes by the accused/appellant cannot be commented upon by the accused/appellant.
11.Further sofar as Panachyat affair was concerned, it is true that there was no panchayat convened in a regular affair. It has taken place in a tea stall. P.W.9 has spoken to the fact that there was illicit intimacy between Lakshmana kumar, the son of P.W.1, with Vasanthi, the wife of the accused/appellant. There was sufficient motive for the accused/appellant to commit the crime. He took a vow before the panchayat, that any one of P.W.1's family members would be revenged at one point of time and also stated that P.W.1 was responsible for the disturbance of his family. Because of that reason, he has acted eventually. In the instant case, all other contentions put for forth by the learned counsel for the appellant do not merit acceptance.
12.In the instant case, the deceased Ramkumar when he was unarmed and getting down from the tractor, the accused/appellant gave him 16 blows on different parts of the body and caused death. This gruesome act, in the opinion of the Court, can only be an intentional one, since he waylaid the deceased and caused him death instantaneously. Therefore, the lower Court was perfectly correct in recording the finding that it was the accused who cut the deceased indiscriminately which led to the death of the deceased. It clearly reveals that it was an intentional one with a motive to commit such crime. Hence, the lower Court has taken a correct view and the decision rendered by the Court below is a well reasoned one. This Court is unable to see any reason to interfere with judgment of the lower Court either legally or factually. The appeal must fail, and accordingly, it fails, and the same is dismissed.
ssm/asvm To
1.The Principal Sessions Judge, Dindigul
2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.