THE HONOURABLE MR.JUSTICE A.SELVAM and THE HONOURABLE MR.JUSTICE P.KALAIYARASAN Crl.A.No.206 of 2017 and Crl.M.P.No.5004 of 2017 Sathish Appellant Vs.
The State Rep. by The Inspector of Police, Viruthampet Police Station, Vellore District. Respondent Prayer : Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure, against the Judgment of conviction and sentence dated 27.03.2017 passed in S.C.No.86 of 2016 on the file of the Additional District Judge (Fast Track Court), Vellore, Vellore District.
For Appellant : Mr.V.Paarthiban for Mr.E.Kannadasan For Respondent : Mr.V.M.R.Rajentran Additional Public Prosecutor
JUDGMENT
(Judgement of the Court delivered by P.KALAIYARASAN, J) This Criminal Appeal is against the Judgment of the Additional District Judge (Fast Track Court), Vellore, convicting and sentencing the appellant herein to life imprisonment and to pay a fine of Rs.500/- with usual default clause.
2. The appellant / accused has been challaned for the offence under Section 302 IPC for murdering his friend Chelladurai at 11 p.m on 07.02.2015 near Elementary School at Arupumedu, Erikarai.
3. The accused and the deceased were friends. The deceased was living with his mother. The deceased used to speak ill about the mother of the accused. The accused also informed the same to the mother as well as brother of the deceased to advise him properly. On the fateful day, the deceased came home after his work at about 6 p.m. The accused came to the house of the deceased and invited him to go out. The mother of the deceased P.W.2 also advised her son not to go out. Again at about 8 p.m, the accused called the deceased to go out for dining. After informing P.W.2, the deceased went along with the accused. P.W.5 Raman saw the deceased along with the accused talking with each other near the school compound on the night of 07.02.2015. P.W.4 saw the deceased with the accused taking liquor by sitting on the school compound wall at about 10 p.m on 07.02.2015. When P.W.1 brother of the deceased had been to nearby lake area for recess in the morning on 08.02.2015, he saw the crowd and found his brother Chelladurai was lying dead with cut injuries on the neck. Since he saw the deceased talking with the accused on the previous day evening and the accused already complained to P.W.1 about the ill speech about his mother by the deceased, he suspected and gave complaint Ex.P.1 in the Viruthambet Police Station.
4. P.W.12, Special Sub-Inspector received the complaint and registered the case in Cr.No.65 of 2015 under Section 302 IPC. P.W.13, Inspector of Police took up the case for investigation and went to the scene of crime at 7.45 p.m. He prepared observation mahazar, Ex.P.3 in the presence of P.W.7 and another witnesses. He also prepared rough sketch Ex.P.13. He recovered blood stained soil (M.O.1), sample soil (M.O.2) in the presence of the same witnesses under mahazar Ex.P.4. He conducted inquest over the dead body in the presence of panchayatdars and prepared Inquest Report Ex.P.14.
5. P.W.10, the Doctor conducted postmortem of the dead body and found the following injuries :
"Injuries noted :
1. Cut throat injury extending from below the lower jaw (mandible) left side to the right side 17x4cm x windpipe deep. Cutting the great vessels and windpipe.
2. An incised wound left little finger.
3. A lacerated would left foot.
Peritoneal and pleural cavities : Empty. Heart : Normal. Chambers : Empty.
Coronaries : Patent. Lungs : Pale. Larynx and trachea : Contains fine froth.
Hyoid bone : Intact. Stomach : Contains 200 gms of digested food particles with nil specific smell. Mucosa : Normal.
Liver, Spleen and Kidneys : Pale. Small intestine : Nil specific. Bladder : Empty. Brain : Pale and Edematous.
Viscera preserved for chemical analysis."
The Doctor is of the opinion that the death would have been caused due to the slash injury on the neck.
6. After autopsy the Special Sub-Inspector of Police collected the blood stained clothes, lungi, shirt, banian and Jetty (MOs.6 to 9) and handed over the body to the relatives. Then he handed over the clothes on the body of the deceased to the Inspector of Police.
7. The Inspector of Police arrested the accused at 6 a.m on 09.12.2015 near Ottaipillaiyar koil, Viruthampet. The confession statement given by the accused voluntarily was recorded by him in the presence of P.W.7 and another witness. The admissible portion of the confession statement is Ex.P.5. Pursuant to the confession statement, the accused took the Investigating Officer and the witnesses to the back side of the Housing Board office and took out the blood stained broken beer bottle, blood stained pant, blood stained shirt (M.Os.3 to 5) and handed over to the Inspector.
8. The Investigating Officer recovered the same under mahazar Ex.P.6 in the presence of the above said witnesses. He examined the witnesses and recorded their statements. Then he sent the accused and the properties to the Court. He also gave letters for sending the properties for chemical examination. P.W.11 received the properties from the Court and after examining the same sent the report and also Serologist Report, Ex.P.10 and Ex.P.11. The Investigating Officer, after completion of investigation laid charge sheet.
9. The accused was questioned under Section 313 (1) Cr.P.C with respect to the incriminating evidence appeared against him and he denied his involvement.
10. The learned Additional District Judge, after analysing the evidence found the accused guilty for the offence under Section 302 IPC and sentenced him as aforesaid.
11. There is no eye witness to the occurrence in this case.
The entire case is based on the circumstantial evidence. The circumstances which has been relied upon by the prosecution are :
(i) There was difference of opinion between the accused and the deceased due to the utterances of the deceased about the mother of the accused.
(ii) The accused and the deceased were seen together lastly during the night on the date of occurrence.
(iii) Tallying of the blood group of the deceased with the blood group found on the properties recovered from the accused pursuant to his confession statement.
12. P.W.2 is the mother of the deceased. She has categorically deposed that the accused informed her that the deceased spoke ill about his mother and asked her to advise him. On the fateful day evening when the deceased returned from work, the accused came to the house at about 7 p.m. and called him to go out. Then again at about 8 'O' clock the accused came and invited to go out for dining. The deceased after informing her mother went with the accused and on the next day morning her son was found lying dead near the lake.
13. P.W.1, the brother of the deceased also says in his evidence that the accused complained about the utterances of the deceased about his mother and he warned his brother. P.W.3 says in his evidence that he saw the accused with the deceased at about 7 p.m on the date of occurrence near the school campus. P.W.4 has categorically deposed that he saw the accused with the deceased at 10 p.m on the date of occurrence taking liquor by sitting on the compound wall of the school. There is absolutely no reason to discard the evidence of the above said witnesses, namely P.W.1 to P.W.4.
14. From the above evidence, it is clear that though there was misunderstanding, the deceased and the accused continued as friends and on the date of occurrence the accused went to the house of the deceased and took him out for consuming liquor and the deceased was found in company with the accused lastly by P.W.2 to P.W.4.
15. As per Section 106 of the Indian Evidence Act, the onus is on the person with whom the deceased was lastly seen to explain the circumstances leading to his death. No explanation is forthcoming from the accused.
16. P.W.7 and the Investigating Officer P.W.13 have deposed that the accused on his arrest voluntarily gave a confession statement and pursuant to the confession statement he took them to the back side of the Housing Board and took out the blood stained broken beer bottle, blood stained pant, blood stained shirt from the place where he hid and handed over to the Inspector. There is no reason to discard the evidence of P.W.7 and P.W.13 as to the recovery through the accused. The properties recovered from the accused and the clothes recovered from the dead body were sent for chemical examination. As per the Serologist Report, Ex.P.15, blood group detected in the pant and broken bottle recovered through the accused tally with the blood group detected in the clothes recovered from the dead body. This corroborates and confirms the involvement of the accused in killing the deceased.
17. It is clear from the medical evidence of the Doctor, P.W.10 that the deceased died due to slash injury on the neck. The Doctor has also deposed that the injury found on the neck of the deceased might have been caused with the broken beer bottle. Therefore, this Court has no hesitation to hold that the accused caused the death of the deceased with broken beer bottle during the night on 07.02.2015.
18. The learned counsel appearing for the appellant repeatedly argued that as the deceased hurled against the mother of the accused defamingly, the accused attacked the deceased with broken beer bottle and therefore, it falls under exception (1) of Section 300 IPC.
19. P.W.1 and P.W.2 say in their evidence that the accused complained to them about the deceased by saying that the deceased spoke defamingly about the mother of the accused. They further say that they advised the deceased. There is no direct evidence excepting the confession statement of the accused to enumerate the sudden provocation. The confession made to a police officer shall not be proved against the accused excepting confession leading to recovery.
20. The learned counsel appearing for the appellant cited the Judgment of the Division Bench of this Court in In re Mottai Thevar reported in AIR 1952 Madras 586, wherein it has been held as follows :
"Even assuming that he was caught by a constable going off with the blood-stained spear and taken to the police station, the statement he made there should certainly be considered in his favour. It is obvious that the learned Sessions Judge did not peruse the case diary as he was entitled to do under S.172 (2) Cri.P.C. The result of our perusal of the confession recorded from him at the police station is that not only do we find mitigating circumstances to justify the imposition of the lesser punishment but we also feel justified in making a recommendation to the Government for commutation of the sentence."
21. Therefore, as per Section 25 of the Indian Evidence Act, the confession statement of the accused can be used in favour of the accused. Prohibition is only the use of the statement against the accused.
22. In this case, the accused gave a confession statement before the Investigating Officer. In this confession statement, he has stated as follows :
"lh!;khf; fily xU gPh; ghl;oYk;. gpuhe;jpa[k; th';fpd;D gf;fj;Jy gPg; rpy;yp 300 th';fp bfhz;L 10 U:gha; nrkpah th';fp bfhz;L kPz;Lk; CUf;F ngha; !;Ty; gf;fj;Jy jz;zp nl';fhz;l cl;fhh;e;J ngrpfpl;oUe;njhk;/ mg;ngh me;j tHpah nghd Rnuc&; ehaf;fh; uhj;jphp 10 kzp mstpy; v';ffpl;l te;J bfh";r neuk; ngrpl;L nghapl;lhh;/ ehd; ifapy;
,Ue;j gpuhe;jpa rhg;gpl;nld;/ nrkpahita[k;. gPg; rpy;ypiaa[k; MSf;F bfh";rk; rhg;gpl;nlhk;/ bry;yJiu ngrpfpl;nl ,Ue;jhd;/ mg;ngh v';f mk;kht gj;jp nftykh ngrp ePa[k; tPl;y ,Uf;fpwjpy;y c';fg;ght[k; tPl;y ,Uf;fpwJy;y c';fk;kh vg;g ghh;j;jhYk; filahz;l cl;fhh;e;J bfhz;oUf;fh';fd;D ngrpdhd;/ vdf;F buhk;g nfhgk; te;JLr;rp/ ifapy; itj;jpUe;j gPh;ghl;oiy vLj;J fy;Y nky jl;l v';fk;khf gj;jp ngrpdh cd;id Fj;jp bfhiy bra;jpLntd;D cile;j fz;zho gPh;ghl;onyhL mtd Fj;j Xondd;/ mtd; gae;J vGe;J jz;zp nl';f; jhz;o !;Ty; Rtj;J nky ngha; rha;";rhd;/ ehd; igy tr;rpUe;j cile;j fz;zho ghl;oyhy mtd; Kd;gf;f fGj;Jy Fj;jp fpHpr;nrd;/ mtd; jLj;J mywp jiuapy tpGe;jhd;/"
23. The deceased previously talked about the mother of the accused defamingly and the accused also complained the same to the brother and mother of the deceased. They also advised the deceased. The accused having informed P.W.1 and P.W.2, the mother and brother of the deceased continued his friendship with the deceased. On the date of occurrence, the accused went to the house of the deceased and took him to the school nearby. Both the accused and the deceased were talking while taking the liquor and snacks. At that time the deceased again spoke ill about the mother of the accused defamingly.
24. It is quite natural for the accused to get provoked on hearing the defamatory utterances about his mother, that too after complaining the earlier such utterances to the mother and brother of the deceased. The accused was not possessing any weapon at the time of occurrence and he used the beer bottle by breaking the same as a weapon. It is not a pre-planned murder. As already pointed out since the accused hurled words defamingly against the mother of the accused even after complaining to the mother and brother of the deceased and their advice, the accused lost his self- control and the provocation is also grave and sudden. Therefore, it squarely falls under exception (1) to Section 300 IPC and it is culpable homicide not amounting to murder. There is no doubt that the accused caused the injury with broken beer bottle on the neck of the deceased only with the intention of causing death. Therefore, the accused is liable to be punished under Section 304 (Part I) IPC.
25. Accordingly, we set aside the conviction of the appellant under Section 302 IPC and imprisonment for life awarded thereunder and instead, we convict him under Section 304 (Part I) IPC and sentence him to undergo rigorous imprisonment for 5 years.
In fine, subject to the modification of sentence as mentioned above, this appeal is dismissed. Consequently, connected miscellaneous petition is closed.
Index : Yes tsvn To
1. The Additional District Judge (Fast Track Court), Vellore, Vellore District.
2. The Inspector of Police, Viruthampet Police Station, Vellore District.
3. The Public Prosecutor High Court, Madras.
(A.S., J.) (P.K., J.) 27.07.2017 A.SELVAM, J.
AND P.KALAIYARASAN, J.
tsvn Pre-Delivery Judgment in Crl.A.No.206 of 2017 27-07-2017