302

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 11.12.2009

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH

CRIMINAL APPEAL No.652 of 2009


Jeeva @ Jeevarathinam ..Appellant


Vs.



State by
The Inspector of Police,
R.8 Vadapalani Police Station,
Chennai.
(Crime No.154/2008)          ..Respondent


This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Principal Sessions Judge, Chennai made in S.C.No.372/2008 dated 30.9.2009

For Appellants    :  Mr.N.Duraiswami

For Respondent  :  Mr.Babu Muthu Meeran, Addl.P.P






J U D G M E N T

(The judgment of the Court was made by M.CHOCKALINGAM, J.)

Challenge is made to the judgment of the Court of Sessions made in S.C.No.372 of 2008 whereby the sole accused/appellant stood charged, tried and found guilty of murder and awarded life imprisonment along with a fine of Rs.5000/- with default sentence.

2. The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the wife of the deceased. The deceased was running a tea stall at Gangaiamman koil street, Vadapalani, Chennai. P.W.2 was working as a tea master in that shop. P.W.3 was the  neighbour. On 3.2.2008, on a  Sunday at about 4.30 p.m. when the deceased P.Ws. 1, 2 and 3 were present in their shop, the accused came there and ordered for tea. According to P.W.2, he gave tea to the accused. Not satisfied with the quality of the tea, he got angry and threw the eatables kept in the stall. P.W.1 objected to the same. At that time, the accused abused her in filthy language. On hearing this, the deceased/husband of P.W.1 intervened and the accused threatened him that he would kill him and left the place.

(b)  At about 5.30 p.m., the husband of P.W.1 took Rs.3/- for purchase of evening newspaper and went outside. When he just went from the shop, P.Ws. 1 and 2 heard distress cry of the deceased. They came out of the shop and witnessed  the accused  who caught of the deceased by his neck and stabbed him with M.O.1 knife. P.Ws. 1 to 3 witnessed the occurrence. When P.Ws. 1 to 3 went nearby and crowd gathered, the accused, fled away from the place of occurrence.

(c) P.W.1 took her husband to the Best Hospital situate nearby the place but there she was advised to take him to the Government Hospital.  Then, they went to the Government Hospital, Royapettah.

(d) P.W.7, doctor who was on duty at that time,  gave first aid. Ex.P5 is the accident register copy. Despite treatment, Arumugham died at about  7.30 p.m. P.W.1 proceeded to the respondent Police Station  and gave a complaint to P.W.12 at 8.30 p.m. On the strength of Ex.P1, a case came to be registered under Section 302 IPC. The F.I.R.,Ex.P.11  was despatched to court.

(e) P.W.12, Inspector of Police took up investigation. He proceeded to the spot, made an inspection and prepared the observation mahazar, Ex.P.2 and drew a rough sketch Ex.P.12. He conducted inquest on the dead body and prepared Ex.P.13, inquest report. Thereafter, the dead body was subjected to post mortem.

(f) On the requisition made by the investigating officer, P.W.7, doctor conducted autopsy on the dead body of the deceased and issued Ex.P4, post mortem certificate wheren he has opined that the deceased would have died out of shock and haemorrhage due to the injuries sustained by him, 17 to 20 hours prior to autopsy.

(g) Pending investigation, the accused was arrested on 4.2.2008 He came forward to give confessional statement voluntarily. The same was recorded in the presence of witnesses. The admissible part of the confessional statement was marked as Ex.P9. Then, he produced M.O.1, knife and also M.O.4, blood stained shirt  which were recovered under a cover of mahazar. The material objects were sent for analysis and reports were received namely Ex.P6 and Ex.P9 chemical and serologist reports respectively. On completion of the investigation, the investigating officer filed a final report.

(h) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 12 witnessed and relied on 16 exhibits and 4 material objects. On completion of the evidence on the side of the prosecution witnesses, the accused was questioned under section 313 Cr.P.C and he denied them as false. No defence witness was examined. The Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and awarded life imprisonment along with fine and default sentence, which is the subject matter of challenge before this Court.

3. Advancing the arguments on behalf of the appellant, the learned counsel would submit, in the instant case, the prosecution has examined three witnesses as eye witnesses and relied on other circumstances but miserably failed to prove its case. P.W.1 has categorically spoken that the occurrence has taken place not in the shop or front of the shop but it has taken place in front of  Vinayaga temple which is situated nearby the place. Thus, P.W.1 who was in the shop and P.W.2 tea master could not have seen the occurrence at all. P.W.3 neighbour  is the close associate and also the interested witness. So far as the place of occurrence is concerned,  the evidence of the investigator was not consistent to the evidence of P.Ws.1 to 3. Even the observation mahazar and the rough sketch prepared by the investigating officer was not clear as to the place of occurrence.

4. Added further learned counsel, admittedly, P.W.1 had stated that he took the deceased immediately to the Best Hospital but no doctor was examined in that regard and even the medical documents were not obtained and nothing was produced before the Court. The non production of that piece of evidence is fatal to the prosecution case.

5. The learned counsel would further submit that P.W.9, doctor who gave treatment in the Royapettah Government Hospital has categorically deposed  that P.W.1 has stated that her husband was attacked by unknown person.  Thus, it would be quite clear that P.W.1 could not have seen the occurrence at all. Added further learned counsel, the investigator would claim that M.O.1 knife was produced and recovered from the open ground and  it is  a place where public could access. Therefore,  the recovery, cannot but be false.

6. Added further learned counsel,  P.Ws.1 to 3 eye- witnesses to the occurrence have deposed that the accused stabbed the deceased only once but there are two external injuries. Thus, P.Ws.1 to 3 could not account for the injuries sustained by the deceased.  Added further learned counsel, the blood stained earth was not recovered from the place of occurrence. Had it been true that the occurrence has taken place, there should have been blood stains. The non recovery of the blood stained earth would clearly indicate that such an occurrence could not have taken place at all as putforth by the prosecution. Hence, the prosecution has miserably failed to prove its case but the trial Court has taken an erroneous view and has rendered the judgment of conviction and sentence which has got to be set aside by this Court.

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

8. It is not in controversy that one Arumugham, husband of P.W.1, following the   incident that  had taken  place at 5.45 p.m. on 3.2.2008 was taken to the Government Hospital, Royapettah,   Madras   who   succumbed  to the injuries at about 7.30 p.m. A case came to be registered by P.W.12, Inspector of Police  under section 302 IPC. The Investigator made inspection and conducted inquest  on the dead body and prepared the inquest report, Ex.P.13 and the dead body was subjected to post mortem. P.W.7, doctor who conducted autopsy gave his opinion that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained by him.  The time and cause of death of he deceased  as putforth by the prosecution was never disputed by the appellant at any stage of the proceedings. Hence, it could be safely recorded that the deceased Arumugham died out of homicidal violence.

9. In order to substantiate that it was the accused  who stabbed the deceased and as a direct consequence death has occurred, the prosecution examined three witnesses viz., P.Ws. 1 to 3.  P.W.1 is the wife of the deceased. P.W.2 is the tea master in the shop of the deceased. P.W.3 is a neighbour. All have stated in one voice that on the date of occurrence at about 3.30 to 4.00 p.m, the accused came to the shop of the deceased and ordered for a tea and the same was supplied to him. Since the accused was not satisfied with the quality of the tea, he threw the eatables available in the shop. When P.W.1 questioned the same, the accused abused her with filthy language. Naturally, as the husband of P.W.1, the deceased questioned the same. At that time, the accused made a challenge that he would finish him off.   Following the    same, within a few hours at about 4.45 p.m, when the deceased went to buy evening newspaper, P.Ws.1 to 3 heard the distress cry of the deceased. They  came out of the shop and noticed the accused stabbing deceased Arumugham with a knife. The evidence of P.Ws.1  to 3, despite careful scrutiny, stood the test. Thus,  the evidence of P.Ws. 1 to 3  inspires the confidence of the Court. The trial Court  has accepted their evidence and rightly  too.  The evidence projected through these witnesses truthfully corroborated by the medical evidence canvassed through P.W.7, the doctor who conducted post mortem on the dead body of the deceased. He has categorically deposed before the Court as a witness and through the contents of the post mortem certificate that the injuries were found on the chest and abdomen.

10. Yet another circumstance which stood against the appellant/accused was the recovery of M.O.1 knife and M.O.4 blood stained shirt. They were recovered pursuant to the confessional statement made by the  accused in the presence of witnesses. The witnesses have also been examined. Despite cross examination,  their evidence remains unshaken. The trial Court has accepted the evidence and this part of the evidence, confessional statement and the recovery of M.O.1 and M.O.4 would be pointing the nexus between the crime and the accused.

11.  Now the contention putforth by the learned counsel for the appellant that the non examination of the medial person in the Best Hospital was fatal to the prosecution, cannot be countenanced for the simple reason that P.W.1 has categorically stated that immediately after the occurrence, she had taken him to the Best Hospital but the doctor had advised her to take him to the Government Hospital immediately.  Therefore, no one could be examined in the Best Hospital. Further, insofar as the place of occurrence  is concerned, the contents of the Observation mahazar and also the rough sketch prepared by the investigating officer was never questioned by the appellant before the trial Court. P.Ws. 1 to 3 have categorically spoken to the fact that the deceased went out of the tea stall and he was just moving from that place, at that time, the occurrence had taken place which was just before Vinayaka temple which actually found in the observation mahazar and the rough sketch. Further,  the contention putforth by the learned counsel for the appellant that there are two external injuries found on the dead body and P.Ws. 1 to 3 have spoken  only about one injury, hence, it is highly doubtful is concerned, this contention cannot be accepted for the simple reason that when they heard the distress cry, P.Ws.1 to 3 came out of the shop and had witnessed only the later part of the occurrence. Therefore, this point cannot be in favour of the accused/appellant.

12. Further, the non production of the history sheet of the deceased from the Government Hospital Royapettah, cannot be a reason to doubt the prosecution case. From the place of occurrence, the deceased Arumugham was taken to the Best Hospital. Thereafter he was taken to the Government Hospital, Royapettah situated 10 kms where he was examined by P.W.9, doctor  and within a short span of time, the deceased died. Under such circumstances, the non-production of history sheet will not in any way tilt the case of the prosecution. The learned counsel for the appellant brought to the notice of the Court that P.W.9 doctor  has given evidence  before the Court has categorically  stated that when P.W.1 brought her deceased husband she has stated that her husband was attacked by unknown person. This evidence of  P.W.9 doctor cannot be countenance in view of the contents in the accident register, Ex.P5 where it has been clearly stated that when P.W.1 brought her husband, she has stated that her husband was attacked by one known person. Under such circumstances, this contention of the learned counsel, do not carry merits.

13. The prosecution is able to show that the accused came to the shop at about 3.30 p.m. and quarrelled in the tea stall and further threw the eatables on the ground and abused P.W.1 in filthy language. Naturally, the deceased who is the husband of P.W.1 questioned the accused and thereafter, the accused left the place. The accused came back at about 5.45 p.m. armed with knife and stabbed the deceased and as a direct consequence, the deceased died. Thus, it would be quite clear that it was a pre-planned act of the accused. Hence, the trial Court is perfectly correct in finding the    accused/appellant   guilty under section 302 I.P.C. and awarding life imprisonment. Hence, the judgment of the trial Court has got to be sustained.

14. Accordingly, the appeal fails and the same is dismissed confirming the judgment of conviction and sentence passed  the trial Court.










vsi

To

1. The Principal Sessions Judge, Chennai

2. The Inspector of Police,
    R.8 Vadapalani Police Station,
    Chennai.

3. The Public Prosecutor, High Court,
   Chennai