Marimuthu Vs. State by Inspector of Police - Court Judgment

SooperKanoon Citationsooperkanoon.com/790092
SubjectCriminal
CourtChennai High Court
Decided OnJan-05-2008
Case NumberCrl. A. No. 423 of 2006
JudgeD. Murugesan and ;V. Periya Karuppiah, JJ.
Reported in2008CriLJ2011
ActsIndian Penal Code (IPC) - Sections 302, 304I and 447; Code of Criminal Procedure (CrPC) - Sections 313
AppellantMarimuthu
RespondentState by Inspector of Police
Appellant AdvocateP.N. Prakash, Adv.
Respondent AdvocateP. Kumaresan, Addl. Public Prosecutor
DispositionAppeal dismissed
Cases Referred(Naval Kishore Singh v. State of Bihar). The
Excerpt:
criminal - conviction - sections 302 and 447 of indian penal code,1860(ipc) - appellant was convicted under aforesaid sections of ipc - hence, present appeal - held, according to facts appellant confessed his guilt - incriminating materials were recovered at instance of appellant - further prosecution witnesses fully corroborated prosecution case - hence, order of conviction under sections 302 and 447 of ipc accordingly upheld - appeal dismissed - - 1 to 4 are reliable since they were supported by the medical evidence and scientific evidence also. 1 alone was put in a single question and the remaining evidence has been separately and distinctly placed before the accused in the questionnaire under section 313 cr. away from aralkundhi and accordingly, he had taken the police as well as the said witnesses to the said place, discovered the knife-m. 5 and his assistant signed both in the confession as well as the seizure mahazar prepared in respect of recovery of m. 1 to 4 are related to the deceased family, their evidence are reliable and it cannot be eschewed merely because they are related witnesses. 1 to 4 are reliable in nature. of police, who registered the case had spoken clearly that p. 11 on 22.1.2002 itself and it had clearly depicted the enmity and the cause of death which would also incriminate the accused. he would submit that when the accused was questioned on the incriminating circumstances available in the evidence of the prosecution against the accused, all the questions were dumped into a single question and it was not put distinctly and separately so as to enable the accused to explain the circumstances and in the said circumstances, the accused is prejudiced and he is entitled for benefit of doubt. we deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. 1 and the evidence of other witnesses have been separately and distinctly put forth in the questionnaire so as to enable the accused to answer the incriminating circumstances as spoken to by the prosecution witnesses. but they have been separately and distinctly put by the lower court for the purpose of answering the questionnaire.v. periya karuppiah, j.1. this appeal is directed against the judgment of the ist additional district judge, dharmapuri at krishnagiri made in s.c. no. 229 of 2004 dated 16.11.2005 convicting the accused/appellant under sections 447 and 302 i.p.c. the accused was sentenced to undergo life imprisonment and to pay a fine of rs. 5000/-, in default to undergo r.i. for one year for the offence under section 302 i.p.c. and to pay a fine of rs. 500/-, in default to undergo r.i. for 15 days for the offence under section 447 i.p.c.2. the case of the prosecution is as follows:(a) p.w.1 is the son of p.w.2 and sambu, the deceased in the case. p.w.3 is the brother of p.w.2. both the families of the accused and deceased belong to aralkundi village.(b) one day prior to the date of occurrence i.e. on 21.1.2002, the accused indulged in a quarrel with the deceased sambu as the deceased sambu conveyed the conversation of the accused, with her, criticizing his son-in-law anbazhangan regarding not taking care of the cow in his absence and that why should he offer milk to his child, which led to a quarrel between the accused and his son-in-law anbazhagan also.(c) on 22.1.2002, at about 8.00 a.m. when the deceased sambu went to pluck 'kollu' (horsegram) from her field. at that time, p.w.1 and p.w.2 were also irrigating in their land. after some time, p.w.1 also left to pluck 'kollu' by joining with his mother. when he was proceeding towards kollu field, p.w.1 heard the shouting of his mother (vernacular matter deleted) immediately, he ran towards the scene of occurrence, where he saw the accused was pulling down her mother, holding her hair and then cut on her back side of the neck with koduval - m.o.1. and thereafter on her hands. when he cut on her cheek, the knife had broken. before p.w.1 reached the spot, the accused ran away with m.o.1. p.w.2 who was irrigating the land and p.w.3, who was also irrigating in his adjacent land also came to the spot on hearing the shouting of the deceased sambu and also saw the accused attacking the deceased sambu. p.w.4, son of p.w.3, who was on the top of a palmyrah tree also came to the spot on seeing the accused holding the hair of the deceased inflicted a cut on her hand. they all found the said sambu with injuries and struggling for her life. later she died there itself.(d) p.ws.1 and 3 went to ariyur police station, leaving the body of the deceased and made a statement before the sub inspector of police, p.w.10, who recorded the same into writing under ex.p.1-complaint and registered a case in cr. no. 29 of 2002 for the offences under sections 447 and 302 i.p.c. then he sent the printed f.i.r.- ex.p.14 through p.w.9 to the judicial magistrate, pennagaram and also forwarded the same to the inspector of police, p.w.11.(e) p.w.11, the inspector of police on receipt of the information through v.h.f. at 11.45 a.m. went to the station at 1.15 p.m. and took up the investigation of the case and left to the scene of crime at 2.00 p.m. he caused the scene of crime and the dead body to be photographed through p.w.8. the photographs and the negatives are m.os.12 and 13 series respectively. he prepared observation mahazar-ex.p.11 and rough sketch-ex.p.15 in the presence of p.w.5, village administrative officer, who came there on information along his assistant ayyamuthu. he recovered blood stained earth-m.o.4. and sample earth -m.o.5 from the scene of occurrence under the cover of mahazar ex.p.3 in the presence of the same witnesses. then he held inquest over the body of the deceased from 3.00 p.m. to 6.00 p.m. and the inquest report is ex.p.16. he examined the witnesses and others and recorded their statements. thereafter, he sent the body for postmortem with requisition ex.p.6 through head constable, madhu to the government hospital dharmapuri.(f) on receipt of the requisition for postmortem, p.w.6, dr. govindaraj, civil assistant surgeon attached to dharmapuri government hospital conducted autopsy on the body of the deceased sambu on 23.1.2002 at 12.30 p.m. he found the following external injuries on the body of deceased, which are incorporated in ex.p.7-postmortem certificate:1) a incised wound left side of occipital region 3x2x1cm2) an incised wound with smooth margin left side of the back of the neck 23x53 cm bone deep with vessels, muscles, nerves incised. i cervical vertebra fractured.3) an incised wound just below the injury no. 2 13 cm x 3 cm bone deep with vessels, nerves, muscles cut with fracture of the left side of mandible.4) an incised wound 2 cm below the wound no. 3 about 8 cm x 3 cm bone deep with muscles nerves, vessels cut with fracture of the c5 vertebra.5) a stab wound over the left cheek entering into oral cavity, with 3 x 1 cm dimension.6) a stab wound over the centre of lower lip 3 x 1 cm oral cavity.7) a stab wound below the wound no. 6 on the left cheek 3 x 1 x bone deep.8) an incised wound left shoulder 6 cm x 2 x 1cm.9) an incised wound left side of back 3 x 1 x 1 cm.10) an incised wound left forearm 10 x 4cm x 5cm wit both bones fracture.11) an incised wound left elbow 11cm x 7cm x bone deep with elbow joint opened with upper end of radius fracture.(g) in furtherance of the investigation, p.w.11 searched for the accused and on 23.1.2002 at 6.00 a.m., he arrested the accused near perumpalai canal, samakkal village in the presence of the vao and his assistant. he recorded the statement of the accused and in pursuant to the admissible portion of the confession statement viz., ex.p.5, he recovered the broken weapon and its handle concealed in a shrub 1km near the scene of occurrence as produced by the accused under mahazar ex.p.4. thereafter, he took the accused to the station and examined him. he recovered his blood stained inner wear viz., baniyan-m.o.6 under ex.p.17. then he sent the accused for remand. he also recovered personal apparels and the jewels of the deceased viz., m.os.8 to 15 as produced by the constable, madhu, under special report ex.p.18. he examined the said constable and recorded his statement. he also examined the doctor and other witnesses and recorded their statements. he gave requisition-ex.p.8 to the court to send for the recovered objects for chemical examination, which was carried out under the original of ex.p.9 and exs.p.10 and 11 are the chemical examination report and serologist's report. by examining all the necessary witnesses and others and also gathering all relevant materials, p.w.11 concluded his investigation and filed a charge sheet against the accused under sections 447 & 302 ipc.3. to prove the above case of the prosecution, p.ws.1 to 11 were examined and exs.p.1 to p.18 and material objects 1 to 15 were marked. on the defence side, no witnesses were examined nor any document was marked.4. when the accused was questioned under section 313 cr.p.c., regarding the incriminating materials available against him, he denied the same and submitted that a false case has been foisted against him.5. however, the learned judge after evaluating the oral and documentary evidence came to the conclusion of holding the accused guilty of the charges framed and he had convicted and sentenced the accused as aforementioned.6. heard the learned counsel for the appellant mr. p.n. prakash and the learned additional public prosecutor, mr. p. kumaresan appearing for the state.7. the learned counsel for the appellant mr. p.n. prakash would submit in his argument that the eye witnesses viz., p.ws.1 to 4 are all closely related to the deceased woman and their evidence were adduced only in order to incriminate the accused on the previous enmity had in between them and the murder of the deceased sambu, the mother of p.w.1, should have been caused by some other enemies of the deceased family and the police had conveniently filed the case against the accused. he would further submit in his argument that the motive alleged by the prosecution for commission of the offence viz., that the deceased sambu had informed the son in law of the accused viz., anbhazhagan about the comment made by the accused against him that he will not even tie the cow in his absence in order to avoid its wandering; but he would come for milk for his child and because of the said comment anbazhagan stopped coming to the house of the accused to take milk for his child, is flimsy to constitute a motive for the commission of the murder. he would further submit that the family of the deceased were inimical towards various persons in respect of some properties and some of their enemies in their family itself would have caused the murder. he would further submit in his argument that even assuming that the case of the prosecution against the accused is true, the said injuries caused to the said sambu was only due to the sudden provocation made by the deceased person in a wordy quarrel and there is no intention for the accused to cause the death of the said sambu and therefore, the lower court ought to have convicted the accused only under section 304 i.p.c. while coming to the conclusion that the accused was guilty of causing death of the said sambu. moreover, he would submit in his argument that the lower court ought to have put separate and distinct questions regarding the incriminating evidence against the accused adduced by the prosecution witnesses so as to enable the accused to answer the questionnaire under section 313 cr.p.c. but the lower court had dumped all the evidence in a single question and had confused the accused in getting the answer. therefore, the accused is entitled for acquittal on that score itself and the conviction and sentence may be set aside and the appeal may be allowed.8. the learned addl. public prosecutor viz., mr. p. kumaresan would submit in his argument that the evidence of p.ws.1 to 4 are cogent and the complaint has been immediately lodged by pw.1, the son of the deceased at 11.00 a.m. and the investigating agency has registered the case, inspected the place of occurrence at 2.00 p.m., seized mos. 4 & 5 from the place of occurrence at 2.30 pm. on the same day, the papers have also been sent to the court immediately and the accused was arrested on the next day and on his confession, the weapon which he used to cause injuries on the said sambu was seized under the mahazar. the said documents were also sent to the court immediately and the cogent and consistent evidence given by pws.1 to 4 are reliable since they were supported by the medical evidence and scientific evidence also. he would further submit in his argument that the evidence of the prosecution were not put to the accused by the lower court in a single question. but the evidence of pw.1 alone was put in a single question and the remaining evidence has been separately and distinctly placed before the accused in the questionnaire under section 313 cr.p.c and therefore, the argument advanced by the defence side is not sustainable. he would also submit in his argument that the injuries caused by the accused on the body of the deceased sambu are all fatal made on the vital organs of the deceased and therefore, it cannot be said that the accused had no intention to kill the deceased and he pleaded for the dismissal of the appeal.9. the occurrence is said to have taken place on 22.1.2002 at 8.00 a.m. at 'kollukadu' belonging to the deceased sambu and family at aralkundi, when the deceased was harvesting kollu (horsegram), the accused had caused injuries on her neck, head, spinal cord, left cheek, left shoulder and right buttocks, left elbow and thereby the said sambu died on the spot and the accused had fled away from the scene of occurrence on seeing p.ws.1 to 3 and one sakkarai, the junior paternal uncle of pw.1 with his wife approaching the place.10. the motive for the said assault on the deceased sambu is said to be the enmity developed in between the accused and the deceased sambu, since the deceased sambu had conveyed the comment made by the accused against his son-in-law anbhazhagan that he used to come for milk for his child only, but he is not taking care of the cow at his house and thereupon the said anbazhagan did not turn to the house of the accused for milk. the accused had believed that the deceased sambu was the cause for the non coming of anbazhagan and his daughter lakshmi for milk to his grand child and on that belief he indulged in a wordy quarrel with sambu on 21.1.2002 by 5.00 pm questioning the information given by the deceased sambu to his son in law and at that time, the accused had abused the deceased sambu with filthy words.11. p.w.1 is the son of the deceased sambu. p.w.2 is the husband of the deceased and p.w.3 is the elder brother of p.w.2. according to p.w.1 on 22.1.2002 at about 8.00 a.m. when he and his father p.w.2 were irrigating the land, his mother the deceased sambu was plucking the riped 'kollu' in their field and in between those two lands there was a paddy field belonging to them and he could see his mother plucking 'kollu', from the place where he was irrigating the field and he had told his father that he would join his mother in plucking the 'kollu' and when he was proceeding towards her mother, the accused marimuthu had come to 'kollu' field and was attacking his mother sambu with 'koduval' and his mother sambu shouted and p.w.1 could see that the accused held the hair of his mother and pulled her down and cut with 'koduval' on her left hand, neck, left jaw and in the meantime, the 'koduval' has broken and his senior paternal uncle p.w.3 had also rushed to the place of occurrence and the accused marimuthu had taken the weapon and fled away from the scene of occurrence. when p.ws.1 and 3 came and saw the injured sambu, she was fighting for her life. thereafter, she died there itself and immediately, he had gone to ariyur police station and reported the matter to the police, who had registered the case. p.w.1 had identified the weapon as m.o.1.12. the evidence of p.w.2 viz., the husband of the deceased sambu, who was also at the time of occurrence irrigating the field with p.w.1 would also corroborate the evidence of p.w.1. similarly, p.w.3, the elder brother of p.w.2 who was also irrigating the field at the time of occurrence had also spoken corroborating the evidence of p.w.1. p.w.4 is the son of p.w.3. he was at the top of a palmyrah tree when the occurrence had taken place. he had also spoken to the effect as other witnesses had spoken about the occurrence and he would also state that before he could get down from the tree and approach the place of occurrence, the accused had committed the offence and fled away from the scene of occurrence.13. we have to see whether the evidence of p.ws.1 to 4 could be relied upon or could the evidence be treated as interested testimony as contended by the learned counsel for the appellant since the other evidence regarding motive for the commission of offence are said to be flimsy?14. the accused was arrested on 23.1.2002 and was examined by the police at 6.00 a.m. in the morning and p.w.5 and his assistant were asked to be present as witnesses for the examination of the accused and at that time, the accused had given a confession statement and in the said statement, he had told the police that he would hand over the weapon hidden by him in a shrub one k.m. away from aralkundhi and accordingly, he had taken the police as well as the said witnesses to the said place, discovered the knife-m.o.1 from the shrub and handed over to the police and p.w.5 and his assistant signed both in the confession as well as the seizure mahazar prepared in respect of recovery of m.o.1. the recovery of the weapon was spoken to and proved by p.w.5 which would further strengthen the evidence of p.ws.1 to 4 that the accused had caused injuries on the deceased sambu and due to the said injuries, sambu died on the spot itself. moreover, the evidence of the doctor who did autopsy on the body of the deceased sambu as p.w.6 would show that she had sustained 11 injuries which description of the injuries had also corroborated by the oral testimony of p.w.1.15. the delay in sending the f.i.r. to the court i.e. only in the evening on the date of occurrence was also promptly explained by p.w.9. it is evident from the prosecution witnesses that the investigating agency, immediately after the registration of the case, had inspected the place of occurrence by 2.00 p.m., seized the properties there at 2.30 p.m., arrested the accused on the next day itself, and recovered the weapon pursuant to the confession statement given by the accused. these circumstances would strongly go a long way to show that even though p.ws.1 to 4 are related to the deceased family, their evidence are reliable and it cannot be eschewed merely because they are related witnesses. since p.ws.1 to 4 were present during the time of occurrence and their evidence is also corroborative nature and there is nothing to show the presence of any other independent witness at the scene of occurrence, the evidence of p.ws.1 to 4 are trustworthy. therefore, the evidence adduced on the side of the prosecution viz., p.ws.1 to 4 are reliable in nature.16. a suspicion has been raised by the learned counsel for the appellant regarding preferring of the complaint by p.w.1 as p.w.1 in his evidence has stated that he had got the thirumal bus from poochur to go to arihyur police station to prefer the complaint. whereas p.w.3 would say that they took tempo from poochur to ariyur. this minor contradiction in the evidence of p.ws.1 and 3 with regard to mode of transportation from the place of occurrence to the police station will not affect the case of the prosecution, in view of the fact that p.w.10, the s.i. of police, who registered the case had spoken clearly that p.w.1 had appeared before him, gave statement, the same was recorded as ex.p.1, registered the case in cr. no. 29 of 2002 and immediately forwarded to the judicial magistrate. therefore, the suspicion raised by the counsel would no loner survive.17. moreover, the shirt worn by the accused at the time of the occurrence was seized and produced as m.o.6. the said baniyan contained blood stains and when it was sent to chemical examination, the blood stains were found to be of human blood and co-related with the blood stains found in the clothes worn by the deceased sambu. apart from that the inquest report produced as ex.p.16 was prepared by the investigating officer-p.w.11 on 22.1.2002 itself and it had clearly depicted the enmity and the cause of death which would also incriminate the accused. the said inquest report had reached the court on 24.1.2002. therefore, we cannot doubt about the involvement of the accused in the commission of the offence against the deceased sambu as put forth by the prosecution.18. so far as the motive and enmity are concerned, the evidence of the prosecution would show that the accused had quarreled with the deceased sambu on 21.1.2002 by 5.00 p.m. questioning her proprietary of communicating what the accused said about his son-in-law to his son-in-law and the accused had also abused the deceased with filthy language. further the evidence would show that the accused was believing that the deceased sambu was the cause for his son-in-law and daughter not turning to his house for getting milk for their child. apart from that, the evidence of the prosecution had also shown that there was already an enmity in grazing the cattle. no doubt, the accused is having the land and is living in the house put up in the land which is nearer to the land of the deceased family. the above evidence and the circumstances as spoken to by the prosecution witnesses are sufficient to attribute the motive alleged by the prosecution against the accused to cause the death of the said sambu.19. now let us advert to the argument of the counsel for the appellant on the aspect of questioning done by the lower court under section 313 cr.p.c. he would submit that when the accused was questioned on the incriminating circumstances available in the evidence of the prosecution against the accused, all the questions were dumped into a single question and it was not put distinctly and separately so as to enable the accused to explain the circumstances and in the said circumstances, the accused is prejudiced and he is entitled for benefit of doubt. he would cite an authority reported in 2004 air scw 4764 (naval kishore singh v. state of bihar). the relevant passage runs as runs:we deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. the trial judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the section 313 examination shall not be carried out as an empty formality. it is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. such an opportunity being given to the accused is part of a fair trial and if it is done in slipshod manner, it may result in imperfect appreciation of evidence.20. now we have to see whether the questionnaire has been prepared and put in a single question in respect of the entire evidence of the prosecution. on a perusal of the questions and answers in the questionnaire, we could see that the evidence of p.w.1 alone was put in question no. 1 and the evidence of other witnesses have been separately and distinctly put forth in the questionnaire so as to enable the accused to answer the incriminating circumstances as spoken to by the prosecution witnesses. the entire evidence of the prosecution has not been clubbed into a single question. but they have been separately and distinctly put by the lower court for the purpose of answering the questionnaire. therefore, the argument advanced by the learned counsel for the appellant cannot be accepted.21. lastly, the learned counsel for the appellant has submitted that even if the injuries had been caused only by the accused as alleged by the prosecution, the same has been caused only on the enragement on a wordy quarrel erupted between the accused and the deceased sambu. therefore, the injuries inflicted would only tantamount to an offence under section 304 ipc and it cannot be termed as a 'murder' warranting conviction under section 302 ipc and pleaded for a lesser sentence. on a careful perusal of the injuries spoken to by pw.1 coupled with the evidence of pw.6, we could see that 11 injuries have been caused and the injuries were found to be on the vital parts of the deceased sambu and therefore, the injuries caused on the body of sambu as caused by the accused with mo.1 cannot be termed as an offence as specified under the exception to 'murder', i.e. culpable homicide not amounting to murder. the motive, nature of injuries and the circumstances as spoken by the prosecution witnesses would go a long way to show that the accused has got a premeditation to commit the murder of the deceased sambu and in furtherance of the same, he had committed the murder of the deceased sambu and therefore, the argument of the learned counsel for the appellant that the offence committed by the accused would only attract the offence under section 304 ipc cannot be sustained.22. on a over all consideration of the evidence by us, we could see that the prosecution has proved its case beyond all reasonable doubt that the accused had committed the murder of the deceased sambu and the conviction and sentence of the accused as passed by the lower court under sections 447 and 302 i.p.c. are liable to be confirmed.23. in the result, the appeal is dismissed confirming the judgment dated 16.11.2005 convicting and sentencing the accused in s.c. no. 229 of 2004 on the file of the ist additional district judge, dharmapuri at krishnagiri for the offence under sections 447 and 302 i.p.c.
Judgment:

V. Periya Karuppiah, J.

1. This appeal is directed against the judgment of the Ist Additional District Judge, Dharmapuri at Krishnagiri made in S.C. No. 229 of 2004 dated 16.11.2005 convicting the accused/appellant under Sections 447 and 302 I.P.C. The accused was sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/-, in default to undergo R.I. for one year for the offence under Section 302 I.P.C. and to pay a fine of Rs. 500/-, in default to undergo R.I. for 15 days for the offence under Section 447 I.P.C.

2. The case of the prosecution is as follows:

(a) P.W.1 is the son of P.W.2 and Sambu, the deceased in the case. P.W.3 is the brother of P.W.2. Both the families of the accused and deceased belong to Aralkundi village.

(b) One day prior to the date of occurrence i.e. on 21.1.2002, the accused indulged in a quarrel with the deceased Sambu as the deceased Sambu conveyed the conversation of the accused, with her, criticizing his son-in-law Anbazhangan regarding not taking care of the cow in his absence and that why should he offer milk to his child, which led to a quarrel between the accused and his son-in-law Anbazhagan also.

(c) On 22.1.2002, at about 8.00 a.m. when the deceased Sambu went to pluck 'Kollu' (Horsegram) from her field. At that time, P.W.1 and P.W.2 were also irrigating in their land. After some time, P.W.1 also left to pluck 'Kollu' by joining with his mother. When he was proceeding towards Kollu field, P.W.1 heard the shouting of his mother (Vernacular matter deleted) Immediately, he ran towards the scene of occurrence, where he saw the accused was pulling down her mother, holding her hair and then cut on her back side of the neck with Koduval - M.O.1. and thereafter on her hands. When he cut on her cheek, the knife had broken. Before P.W.1 reached the spot, the accused ran away with M.O.1. P.W.2 who was irrigating the land and P.W.3, who was also irrigating in his adjacent land also came to the spot on hearing the shouting of the deceased Sambu and also saw the accused attacking the deceased Sambu. P.W.4, son of P.W.3, who was on the top of a palmyrah tree also came to the spot on seeing the accused holding the hair of the deceased inflicted a cut on her hand. They all found the said Sambu with injuries and struggling for her life. Later she died there itself.

(d) P.Ws.1 and 3 went to Ariyur Police Station, leaving the body of the deceased and made a statement before the Sub Inspector of Police, P.W.10, who recorded the same into writing under Ex.P.1-Complaint and registered a case in Cr. No. 29 of 2002 for the offences under Sections 447 and 302 I.P.C. Then he sent the printed F.I.R.- Ex.P.14 through P.W.9 to the Judicial Magistrate, Pennagaram and also forwarded the same to the Inspector of Police, P.W.11.

(e) P.W.11, the Inspector of Police on receipt of the information through V.H.F. at 11.45 a.m. went to the Station at 1.15 p.m. and took up the investigation of the case and left to the scene of crime at 2.00 p.m. He caused the scene of crime and the dead body to be photographed through P.W.8. The photographs and the negatives are M.Os.12 and 13 series respectively. He prepared observation mahazar-Ex.P.11 and rough sketch-Ex.P.15 in the presence of P.W.5, Village Administrative Officer, who came there on information along his Assistant Ayyamuthu. He recovered blood stained earth-M.O.4. and sample earth -M.O.5 from the scene of occurrence under the cover of Mahazar Ex.P.3 in the presence of the same witnesses. Then he held inquest over the body of the deceased from 3.00 p.m. to 6.00 p.m. and the inquest report is Ex.P.16. He examined the witnesses and others and recorded their statements. Thereafter, he sent the body for postmortem with requisition Ex.P.6 through Head Constable, Madhu to the Government Hospital Dharmapuri.

(f) On receipt of the requisition for postmortem, P.W.6, Dr. Govindaraj, Civil Assistant Surgeon attached to Dharmapuri Government Hospital conducted autopsy on the body of the deceased Sambu on 23.1.2002 at 12.30 p.m. He found the following external injuries on the body of deceased, which are incorporated in Ex.P.7-Postmortem Certificate:

1) A incised wound left side of occipital region 3x2x1cm

2) An incised wound with smooth margin left side of the back of the neck 23x53 cm bone deep with vessels, muscles, nerves incised. I cervical vertebra fractured.

3) An incised wound just below the injury No. 2 13 cm x 3 cm bone deep with vessels, nerves, muscles cut with fracture of the left side of mandible.

4) An incised wound 2 cm below the wound No. 3 about 8 cm x 3 cm bone deep with muscles nerves, vessels cut with fracture of the C5 vertebra.

5) A stab wound over the left cheek entering into oral cavity, with 3 x 1 cm dimension.

6) A stab wound over the centre of lower lip 3 x 1 cm oral cavity.

7) A stab wound below the wound No. 6 on the left cheek 3 x 1 x bone deep.

8) An incised wound left shoulder 6 cm x 2 x 1cm.

9) An incised wound left side of back 3 x 1 x 1 cm.

10) An incised wound left forearm 10 x 4cm x 5cm wit both bones fracture.

11) An incised wound left elbow 11cm x 7cm x bone deep with elbow joint opened with upper end of radius fracture.

(g) In furtherance of the investigation, P.W.11 searched for the accused and on 23.1.2002 at 6.00 a.m., he arrested the accused near Perumpalai Canal, Samakkal Village in the presence of the VAO and his Assistant. He recorded the statement of the accused and in pursuant to the admissible portion of the confession statement viz., Ex.P.5, he recovered the broken weapon and its handle concealed in a shrub 1km near the scene of occurrence as produced by the accused under Mahazar Ex.P.4. Thereafter, he took the accused to the Station and examined him. He recovered his blood stained inner wear viz., baniyan-M.O.6 under Ex.P.17. Then he sent the accused for remand. He also recovered personal apparels and the jewels of the deceased viz., M.Os.8 to 15 as produced by the Constable, Madhu, under Special Report Ex.P.18. He examined the said constable and recorded his statement. He also examined the doctor and other witnesses and recorded their statements. He gave requisition-Ex.P.8 to the Court to send for the recovered objects for chemical examination, which was carried out under the original of Ex.P.9 and Exs.P.10 and 11 are the chemical examination report and serologist's report. By examining all the necessary witnesses and others and also gathering all relevant materials, P.W.11 concluded his investigation and filed a charge sheet against the accused under Sections 447 & 302 IPC.

3. To prove the above case of the prosecution, P.Ws.1 to 11 were examined and Exs.P.1 to P.18 and material objects 1 to 15 were marked. On the defence side, no witnesses were examined nor any document was marked.

4. When the accused was questioned under Section 313 Cr.P.C., regarding the incriminating materials available against him, he denied the same and submitted that a false case has been foisted against him.

5. However, the learned Judge after evaluating the oral and documentary evidence came to the conclusion of holding the accused guilty of the charges framed and he had convicted and sentenced the accused as aforementioned.

6. Heard the learned Counsel for the appellant Mr. P.N. Prakash and the learned Additional Public Prosecutor, Mr. P. Kumaresan appearing for the State.

7. The learned Counsel for the appellant Mr. P.N. Prakash would submit in his argument that the eye witnesses viz., P.Ws.1 to 4 are all closely related to the deceased woman and their evidence were adduced only in order to incriminate the accused on the previous enmity had in between them and the murder of the deceased Sambu, the mother of P.W.1, should have been caused by some other enemies of the deceased family and the police had conveniently filed the case against the accused. He would further submit in his argument that the motive alleged by the prosecution for commission of the offence viz., that the deceased Sambu had informed the son in law of the accused viz., Anbhazhagan about the comment made by the accused against him that he will not even tie the cow in his absence in order to avoid its wandering; but he would come for milk for his child and because of the said comment Anbazhagan stopped coming to the house of the accused to take milk for his child, is flimsy to constitute a motive for the commission of the murder. He would further submit that the family of the deceased were inimical towards various persons in respect of some properties and some of their enemies in their family itself would have caused the murder. He would further submit in his argument that even assuming that the case of the prosecution against the accused is true, the said injuries caused to the said Sambu was only due to the sudden provocation made by the deceased person in a wordy quarrel and there is no intention for the accused to cause the death of the said Sambu and therefore, the lower Court ought to have convicted the accused only under Section 304 I.P.C. while coming to the conclusion that the accused was guilty of causing death of the said Sambu. Moreover, he would submit in his argument that the lower Court ought to have put separate and distinct questions regarding the incriminating evidence against the accused adduced by the prosecution witnesses so as to enable the accused to answer the questionnaire under Section 313 Cr.P.C. But the lower Court had dumped all the evidence in a single question and had confused the accused in getting the answer. Therefore, the accused is entitled for acquittal on that score itself and the conviction and sentence may be set aside and the appeal may be allowed.

8. The learned Addl. Public Prosecutor viz., Mr. P. Kumaresan would submit in his argument that the evidence of P.Ws.1 to 4 are cogent and the complaint has been immediately lodged by PW.1, the son of the deceased at 11.00 a.m. and the investigating agency has registered the case, inspected the place of occurrence at 2.00 p.m., seized MOs. 4 & 5 from the place of occurrence at 2.30 pm. on the same day, the papers have also been sent to the Court immediately and the accused was arrested on the next day and on his confession, the weapon which he used to cause injuries on the said Sambu was seized under the mahazar. The said documents were also sent to the Court immediately and the cogent and consistent evidence given by PWs.1 to 4 are reliable since they were supported by the medical evidence and scientific evidence also. He would further submit in his argument that the evidence of the prosecution were not put to the accused by the lower Court in a single question. But the evidence of PW.1 alone was put in a single question and the remaining evidence has been separately and distinctly placed before the accused in the questionnaire under Section 313 Cr.P.C and therefore, the argument advanced by the defence side is not sustainable. He would also submit in his argument that the injuries caused by the accused on the body of the deceased Sambu are all fatal made on the vital organs of the deceased and therefore, it cannot be said that the accused had no intention to kill the deceased and he pleaded for the dismissal of the appeal.

9. The occurrence is said to have taken place on 22.1.2002 at 8.00 a.m. at 'Kollukadu' belonging to the deceased Sambu and family at Aralkundi, when the deceased was harvesting Kollu (Horsegram), the accused had caused injuries on her neck, head, spinal cord, left cheek, left shoulder and right buttocks, left elbow and thereby the said Sambu died on the spot and the accused had fled away from the scene of occurrence on seeing P.Ws.1 to 3 and one Sakkarai, the junior paternal uncle of PW.1 with his wife approaching the place.

10. The motive for the said assault on the deceased Sambu is said to be the enmity developed in between the accused and the deceased Sambu, since the deceased Sambu had conveyed the comment made by the accused against his son-in-law Anbhazhagan that he used to come for milk for his child only, but he is not taking care of the cow at his house and thereupon the said Anbazhagan did not turn to the house of the accused for milk. The accused had believed that the deceased Sambu was the cause for the non coming of Anbazhagan and his daughter Lakshmi for milk to his grand child and on that belief he indulged in a wordy quarrel with Sambu on 21.1.2002 by 5.00 pm questioning the information given by the deceased Sambu to his son in law and at that time, the accused had abused the deceased Sambu with filthy words.

11. P.W.1 is the son of the deceased Sambu. P.W.2 is the husband of the deceased and P.W.3 is the elder brother of P.W.2. According to P.W.1 on 22.1.2002 at about 8.00 a.m. when he and his father P.W.2 were irrigating the land, his mother the deceased Sambu was plucking the riped 'Kollu' in their field and in between those two lands there was a paddy field belonging to them and he could see his mother plucking 'Kollu', from the place where he was irrigating the field and he had told his father that he would join his mother in plucking the 'Kollu' and when he was proceeding towards her mother, the accused Marimuthu had come to 'Kollu' field and was attacking his mother Sambu with 'Koduval' and his mother Sambu shouted and P.W.1 could see that the accused held the hair of his mother and pulled her down and cut with 'Koduval' on her left hand, neck, left jaw and in the meantime, the 'Koduval' has broken and his senior paternal uncle P.W.3 had also rushed to the place of occurrence and the accused Marimuthu had taken the weapon and fled away from the scene of occurrence. When P.Ws.1 and 3 came and saw the injured Sambu, she was fighting for her life. Thereafter, she died there itself and immediately, he had gone to Ariyur Police Station and reported the matter to the police, who had registered the case. P.W.1 had identified the weapon as M.O.1.

12. The evidence of P.W.2 viz., the husband of the deceased Sambu, who was also at the time of occurrence irrigating the field with P.W.1 would also corroborate the evidence of P.W.1. Similarly, P.W.3, the elder brother of P.W.2 who was also irrigating the field at the time of occurrence had also spoken corroborating the evidence of P.W.1. P.W.4 is the son of P.W.3. He was at the top of a Palmyrah Tree when the occurrence had taken place. He had also spoken to the effect as other witnesses had spoken about the occurrence and he would also state that before he could get down from the tree and approach the place of occurrence, the accused had committed the offence and fled away from the scene of occurrence.

13. We have to see whether the evidence of P.Ws.1 to 4 could be relied upon or could the evidence be treated as interested testimony as contended by the learned Counsel for the appellant since the other evidence regarding motive for the commission of offence are said to be flimsy?

14. The accused was arrested on 23.1.2002 and was examined by the police at 6.00 a.m. in the morning and P.W.5 and his Assistant were asked to be present as witnesses for the examination of the accused and at that time, the accused had given a confession statement and in the said statement, he had told the police that he would hand over the weapon hidden by him in a shrub one k.m. away from Aralkundhi and accordingly, he had taken the police as well as the said witnesses to the said place, discovered the knife-M.O.1 from the shrub and handed over to the Police and P.W.5 and his assistant signed both in the confession as well as the seizure mahazar prepared in respect of recovery of M.O.1. The recovery of the weapon was spoken to and proved by P.W.5 which would further strengthen the evidence of P.Ws.1 to 4 that the accused had caused injuries on the deceased Sambu and due to the said injuries, Sambu died on the spot itself. Moreover, the evidence of the doctor who did autopsy on the body of the deceased Sambu as P.W.6 would show that she had sustained 11 injuries which description of the injuries had also corroborated by the oral testimony of P.W.1.

15. The delay in sending the F.I.R. to the Court i.e. only in the evening on the date of occurrence was also promptly explained by P.W.9. It is evident from the prosecution witnesses that the investigating agency, immediately after the registration of the case, had inspected the place of occurrence by 2.00 p.m., seized the properties there at 2.30 p.m., arrested the accused on the next day itself, and recovered the weapon pursuant to the confession statement given by the accused. These circumstances would strongly go a long way to show that even though P.Ws.1 to 4 are related to the deceased family, their evidence are reliable and it cannot be eschewed merely because they are related witnesses. Since P.Ws.1 to 4 were present during the time of occurrence and their evidence is also corroborative nature and there is nothing to show the presence of any other independent witness at the scene of occurrence, the evidence of P.Ws.1 to 4 are trustworthy. Therefore, the evidence adduced on the side of the prosecution viz., P.Ws.1 to 4 are reliable in nature.

16. A suspicion has been raised by the learned Counsel for the appellant regarding preferring of the complaint by P.W.1 as P.W.1 in his evidence has stated that he had got the Thirumal Bus from Poochur to go to Arihyur Police Station to prefer the complaint. Whereas P.W.3 would say that they took tempo from Poochur to Ariyur. This minor contradiction in the evidence of P.Ws.1 and 3 with regard to mode of transportation from the place of occurrence to the Police Station will not affect the case of the prosecution, in view of the fact that P.W.10, the S.I. of Police, who registered the case had spoken clearly that P.W.1 had appeared before him, gave statement, the same was recorded as Ex.P.1, registered the case in Cr. No. 29 of 2002 and immediately forwarded to the Judicial Magistrate. Therefore, the suspicion raised by the counsel would no loner survive.

17. Moreover, the shirt worn by the accused at the time of the occurrence was seized and produced as M.O.6. The said Baniyan contained blood stains and when it was sent to chemical examination, the blood stains were found to be of human blood and co-related with the blood stains found in the clothes worn by the deceased Sambu. Apart from that the inquest report produced as Ex.P.16 was prepared by the investigating officer-P.W.11 on 22.1.2002 itself and it had clearly depicted the enmity and the cause of death which would also incriminate the accused. The said inquest report had reached the Court on 24.1.2002. Therefore, we cannot doubt about the involvement of the accused in the commission of the offence against the deceased Sambu as put forth by the prosecution.

18. So far as the motive and enmity are concerned, the evidence of the prosecution would show that the accused had quarreled with the deceased Sambu on 21.1.2002 by 5.00 p.m. questioning her proprietary of communicating what the accused said about his son-in-law to his son-in-law and the accused had also abused the deceased with filthy language. Further the evidence would show that the accused was believing that the deceased Sambu was the cause for his son-in-law and daughter not turning to his house for getting milk for their child. Apart from that, the evidence of the prosecution had also shown that there was already an enmity in grazing the cattle. No doubt, the accused is having the land and is living in the house put up in the land which is nearer to the land of the deceased family. The above evidence and the circumstances as spoken to by the prosecution witnesses are sufficient to attribute the motive alleged by the prosecution against the accused to cause the death of the said Sambu.

19. Now let us advert to the argument of the counsel for the appellant on the aspect of questioning done by the lower Court under Section 313 Cr.P.C. He would submit that when the accused was questioned on the incriminating circumstances available in the evidence of the prosecution against the accused, all the questions were dumped into a single question and it was not put distinctly and separately so as to enable the accused to explain the circumstances and in the said circumstances, the accused is prejudiced and he is entitled for benefit of doubt. He would cite an authority reported in 2004 AIR SCW 4764 (Naval Kishore Singh v. State of Bihar). The relevant passage runs as runs:

We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in slipshod manner, it may result in imperfect appreciation of evidence.

20. Now we have to see whether the questionnaire has been prepared and put in a single question in respect of the entire evidence of the prosecution. On a perusal of the questions and answers in the questionnaire, we could see that the evidence of P.W.1 alone was put in Question No. 1 and the evidence of other witnesses have been separately and distinctly put forth in the questionnaire so as to enable the accused to answer the incriminating circumstances as spoken to by the prosecution witnesses. The entire evidence of the prosecution has not been clubbed into a single question. But they have been separately and distinctly put by the lower Court for the purpose of answering the questionnaire. Therefore, the argument advanced by the learned Counsel for the appellant cannot be accepted.

21. Lastly, the learned Counsel for the appellant has submitted that even if the injuries had been caused only by the accused as alleged by the prosecution, the same has been caused only on the enragement on a wordy quarrel erupted between the accused and the deceased Sambu. Therefore, the injuries inflicted would only tantamount to an offence under Section 304 IPC and it cannot be termed as a 'murder' warranting conviction under Section 302 IPC and pleaded for a lesser sentence. On a careful perusal of the injuries spoken to by PW.1 coupled with the evidence of PW.6, we could see that 11 injuries have been caused and the injuries were found to be on the vital parts of the deceased Sambu and therefore, the injuries caused on the body of Sambu as caused by the accused with MO.1 cannot be termed as an offence as specified under the exception to 'Murder', i.e. culpable homicide not amounting to murder. The motive, nature of injuries and the circumstances as spoken by the prosecution witnesses would go a long way to show that the accused has got a premeditation to commit the murder of the deceased Sambu and in furtherance of the same, he had committed the murder of the deceased Sambu and therefore, the argument of the learned Counsel for the appellant that the offence committed by the accused would only attract the offence under Section 304 IPC cannot be sustained.

22. On a over all consideration of the evidence by us, we could see that the prosecution has proved its case beyond all reasonable doubt that the accused had committed the murder of the deceased Sambu and the conviction and sentence of the accused as passed by the lower Court under Sections 447 and 302 I.P.C. are liable to be confirmed.

23. In the result, the appeal is dismissed confirming the judgment dated 16.11.2005 convicting and sentencing the accused in S.C. No. 229 of 2004 on the file of the Ist Additional District Judge, Dharmapuri at Krishnagiri for the offence under Sections 447 and 302 I.P.C.