BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :23/06/2009
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE SELVI JUSTICE R.MALA
Criminal Appeal (MD) No.291 of 2008
Saravanan ..Appellant/Accused
vs
State rep. by
Inspector of Police,
Kovilangulam.
Cr.No.49/06 ..Respondent/Complainant
Appeal under Section 374 (2) of the Code of Criminal Procedure
against the Judgment, dated 28.08.2007, in S.C.No.182 of 2006 on the file of the
learned Additional Sessions Judge (Fast Track Court), Ramanathapuram.
!For Appellant ... Mr.Moorthy for
Mr.J.Gunaseelan Muthiah.
^For Respondent ... Mr.Issac Manuel,
Addl.Public Prosecutor.
:JUDGMENT
(Judgment of the Court was delivered by R.MALA,J)
This appeal arises out of the Judgment, dated 28.08.2007, made in
S.C.No.182 of 2006 on the file of learned Additional Sessions Judge (Fast Track
Court), Ramanathapuram, whereby the appellant, who faced trial for the charges
under Section 326 and 307 IPC, was found guilty under Section 307 IPC and
sentenced to undergo life imprisonment. However, he was acquitted from the
charge under Section 326 IPC.
2.Case of prosecution, in nutshell, is as follows:-
(a)P.W.1-Thangavelammal and P.W.2-Ramachandran are husband and wife.
They are having a petty shop in their village. Eight days prior to the
occurrence, a girl came to their shop and at that time, the appellant/accused
Saravanan eve-teased her. On seeing the same, P.W.2 warned the accused. On the
fateful day, i.e.03.07.2006, at 7.45 p.m., when P.W.1 and her husband (P.W.2)
were chatting with each other in front of the shop, along with P.W.3-Gurusamy
Thevar, the appellant/accused came there with an Aruval (M.O.1), questioned
P.W.2 as to how he could question and warn him while he was talking with the
girl and uttering the words """,j;NjhL njhiye;J Ngh"" cut the deceased on his
right side neck with M.O.1 Aruval and when the appellant/accused attempted to
cut again, P.W.2 prevented the same, in which he sustained injuries on his right
thumb and index finger. P.Ws 1 and 3 tried to prevent the same, but the accused
ran away from the place of occurrence. Immediately, P.W.1 conveyed the news to
his son-in-law (P.W.4) Saivam, who was in Madurai. On his instructions, P.W.1,
P.W.5 and one Moorthy took the injured P.W.2 to Meenakshi Mission Hospital,
Madurai.
(b)P.W.8 - Dr.Mohan, attached to Madurai Meenakshi Mission Hospital,
admitted P.W.2 on 03.07.2006 at 10.45 p.m. and he treated him for the injuries
sustained by him. He gave Ex.P-7 Wound Certificate to P.W.2.
(c)On receipt of intimation from hospital, P.W.9 - Sub Inspector of
Police, attached to Kovilankulam Police Station, went to the hospital on
04.07.2006 at 11.00 a.m. and since P.W.2 was not able to speak, he obtained a
statement (Ex.P-1) from P.W.1 -Thangavelammal, the wife of injured P.W.2. On
the basis of Ex.P-1, a case was registered in Cr.No.49/2006 U/s.304 and 307
I.P.C. Ex.P-8 is the First Information Report. P.W.9 sent Ex.P-1 Complaint and
Ex.P-8 FIR to the Court and their copies to higher officials.
(d)Since Inspector of Police was on other duty, on instruction,
P.W.9 had taken up the preliminary investigation. Before proceeding to the scene
of occurrence, at 3.00 p.m., P.W.9 arrested the accused in the presence of
P.W.6 Muthukaruppan, Village Administrative Officer and Village Assistant.
At that time, the accused voluntarily gave a confession statement. In pursuance
of the admissible portion of the said confession statement (Ex.P-3), the accused
handed over M.O.1 Aruval, which was hidden by him near a Kattukaruvel bush and
the same was seized by P.W.9 under Ex.P-4 mahazar. Then, at 17.15 hours, P.W.9
inspected the scene of occurrence and prepared Ex.P-6 -Observation Mahazar and
Ex.P-9-Rough Plan. From the scene of occurrence, bloodstained mud [MO2] and
sample mud [MO3] were recovered under Ex.P5-Mahazar in the presence of P.W.6
Muthukaruppan and one Chandran. Witnesses were examined and P.W.9 put up the
case before P.W.10-Palanichamy, Inspector of Police, for further investigation.
(e)P.W.10 proceeded with further investigation. He examined P.W.8
Doctor who teated the injured P.W.2, completed the investigation and filed the
final report against the accused U/s. 324, 326 and 307 IPC.
3.In the trial court, to substantiate the charges against the
accused, the prosecution examined ten witnesses as PW.1 to PW.10, marked
Exs.P-1 to P-9 and produced MOs.1 to 3. On completion of the evidence on the
side of the prosecution, the accused was questioned U/s.313 Cr.P.C. about the
incriminating circumstances found in the evidence of prosecution witnesses.
Accused denied all of them and pleaded not guilty and stated that a false case
has been foisted against them. On the side of the accused, no witnesses were
examined and no documents were marked.
4.Upon analysis of oral and documentary evidence, learned Sessions
Judge after holding that the evidence of P.W.1 and P.W.3 is trustworthy and
coupled with the evidence of injured witness P.W.2, the prosecution has
established the guilt of the Accused and found the accused guilty under Section
307 I.P.C and sentenced him to undergo life imprisonment but, however, found him
not guilty under Section 326 IPC and acquitted him of the said charge. Hence
this appeal by the appellant.
5.We have heard the learned counsel for the appellant and the
learned Additional Public Prosecutor for the State.
6.Learned Appellant's counsel would contend that motive for the
occurrence has not been proved. Learned counsel for the appellant submitted
that as per the evidence of P.Ws.1 to 3, eight days prior to the occurrence the
accused teased one lady, who was said to be a customer of the shop owned by
P.W.1 and P.W.2 and the same was questioned by P.W.2 and he also warned the
accused as to how he could tease a lady and, therefore, the accused took
vengeance and after eight days, he came with M.O.1 Aruval and assaulted P.W.2.
Therefore, it is contended by the learned counsel that it is unsafe to conclude
that the accused was having motive for commission of the offence.
7.At this juncture, learned Additional Public Prosecutor has put-
forth his arguments stating that since the prosecution case is based on eye-
witnesses and even though P.W.1 and P.W.4 are relatives of P.W.2, who is the
victim, P.W.3 is an independent witness and the evidence of P.Ws.1, 2 and 4 has
been corroborated by the evidence of P.W.3, which clearly proved the incident.
8.Motive is a double edged weapon, which can be used either way.In
the present, the case of the prosecution is based on the evidence of eye-
witnesses and therefore motive does not play a vital role. Further, sufficiency
or insufficiency motive to prove occurrence does not assume much significance.
However, in the present case, motive has been proved by way of examination of
P.Ws.1 to 3.
9.Learned Appellant's counsel would contend that the alleged
teasing of a girl by the accused eight days prior to the incident was not
proved by examining the lady who is alleged to have teased by the accused and
hence the motive assigned by the prosecution for the occurrence has not been
proved. But, the above contention does not hold good because, as already
discussed, since the case of the prosecution is based on eye-witnesses and
independent eye-witness of P.W.3, non-examination of the lady alleged to have
been teased by the accused is not fatal to the case of the prosecution.
10.Learned counsel for the appellant would contend that P.w.1 is the
wife of the victim and P.W.4 Saivam is the son-in-law of P.W.1 and P.W.2 and
thus the witnesses are related and interested witnesses and therefore their
evidence cannot be relied upon. The above argument of the learned counsel for
the appellant does not merit acceptance because, P.W.2 is the victim. He
sustained injuries in the transaction. As already stated P.W.3 is a neighbour
and he is not related to P.Ws.1, 2 and 4. The evidence of P.W.1 and P.W.2 is
amply corroborated by the evidence of P.W.3 in respect of each and every overt
act of the accused. Further, the incident has been clearly spoken to by P.W.3,
who is an independent witness. In such circumstances, the argument advanced by
the learned counsel for the appellant that the evidence of related witnesses
cannot be relied upon is unacceptable one.
11.Learned counsel for the appellant would contend that P.W.8, the
Doctor, in Ex.P-7, the wound certificate, has mentioned only one injury and he
has not mentioned the other injuries. While considering Ex.P-7 wound
certificate, a cut injury measuring 15 x 6 cm on the right side of neck is
found mentioned. Further, in the bottom of the same wound certificate the
Doctor has opined that Injury No.1 is grievous injury and Injury Nos.2 and 3 are
simple injuries. While P.W.8, the Doctor, was in Box, he has given an
explanation that he has not mentioned the simple injuries sustained by the
victim. In such circumstances, the said explanation offered by the Doctor is
acceptable. So, the argument advanced by the learned counsel for the appellant
does not merit acceptance.
12.Learned counsel for the appellant further contended that the
occurrence is said to have taken place at 7.45 p.m. on 03.07.2006 but Ex.P-1
complaint has been recorded only at 11.00 a.m. on the next day and thus there
is delay in giving complaint to the Police. The incident had taken place at
about 7.45 p.m. on 03.07.2006 and immediately P.W.2, the victim, was taken to
Hospital where P.W.8 gave treatment at 10.45 p.m. Then, on receipt of
information from the Hospital on 04,.07.2006, P.W.9 Sub-Inspector of Police had
rushed to the hospital. Since the victim was unconscious state, P.W.9 obtained
complaint from P.W.1, wife of the victim, came back to the Police Station and
registered a case in Crime No.49/2006 under Sections 324 and 307 IPC and
prepared Ex.P-8 FIR. While considering the same, the delay has been properly
explained and it does not affect the case of the prosecution.
13.Lastly, learned appellant's counsel would contend that the
accused is an insane person and even while he was facing trial his mental
faculties were affected and even now he is in the same mental condition but the
trial court has not considered this aspect in proper perspective. Per contra,
learned Additional Public Prosecutor has urged that even during the trial, the
same defence plea was raised and at that time no doctor was examined and no
medical certificate to that effect was produced before the Court to show that
the appellant/accused was suffering from mental imbalance and moreover, even now
the appellant has not filed any petition before this Court to prove that he is
mentally affected.
14.It is the contention of the learned counsel appearing for the
appellant that at the time of occurrence, the mental faculty of the appellant
was affected. By so contending, a feeble attempt was made raising plea of
insanity. Whenever a plea of insanity is raised, the accused must prove that at
the time of occurrence, he was in unsound mind and incapable of knowing the
nature of act at the time of commission of offence. Plea of insanity must be
established by the accused by adducing evidence. Upon analysis of evidence, the
trial court held that no evidence was adduced by the accused to substantiate the
plea of insanity. Since no evidence was adduced to prove the plea of insanity,
we also endorse the view of the learned Sessions Judge negativing plea of
insanity.
15.Learned counsel for the appellant would rely upon the decision
reported in 2008 (4) CTC Page 308 - Kaliammal v. State and argue that since
the motive is not proved and the medical evidence does not support the
prosecution case to establish the guilt of the accused, the appellant is
entitled for an order of acquittal. But the above decision is not applicable to
the facts of this case. As already discussed in paragraph Nos.6, 7 & 10, the
motive for the occurrence has been proved. Moreover, it is a case based on
eye-witness. The victim himself has spoken about the same. P.W.8 - Doctor who
gave treatment to the victim has also deposed about the injuries found on the
body of the victim. There is no contradiction between the ocular evidence and
medical evidence.
16.Learned counsel for the appellant relied upon another decision
in 2009 Crl.L.J.1136 (SC) - Ramdas v. State of M.P. In the said case the
opinion of the Doctor proved that the deceased had not died due to direct result
of injury sustained. But the above factual situation is not applicable to the
case on hand, because here the case was under Section 307 IPC and the victim
himself has deposed before the Court that he was attacked by the accused and
this has been corroborated by the evidence of P.W.8, the Doctor, who gave
treatment to the victim and by Ex.P-7, the wound certificate, issued by him. The
trial court is correct in coming to the conclusion that the appellant is guilty
of offence under Section 307 IPC.
17.The evidence of P.Ws.1, 2 and 3 has clearly proved that on
03.07.2006 at about 7.45 p.m., in front of P.W.2's Petty shop when P.W.1 and
P.W.2 were sitting and chatting with P.W.3, the accused rushed to the place and
assaulted the P.W.2, the victim, on his right neck stating "why you scolded and
warned me when I teased a lady". Their evidence would further prove that when
the accused gave a second blow, the same was prevented by P.W.2 and at that
time he sustained cut injuries on his right thumb and index finger.
Immediately after the occurrence, P.W.5 and P.W.1 took P.W.2, the injured, to
the hospital where P.W.8 Doctor gave treatment to the injuries sustained by
P.W.2. The overt act of the accused has been corroborated by medical evidence
also. The overt act of the accused/appellant has been proved beyond reasonable
doubt by the prosecution by examining P.W.3, an independent witness and the
trial court has come to the correct conclusion that the accused inflicted
injuries to P.w.2 and found him guilty under Section 307 IPC.
18.In so far as the sentence is concerned, the learned Sessions
Judge, while finding the accused guilty under Section 307 IPC and convicting him
thereunder, has imposed life imprisonment. Learned counsel for the appellant
submitted that the appellant is aged about 25 years and he is an youngster and
moreover it is the first offence and that the life sentence awarded by the trial
court is on the higher side and hence prayed for the modification/reduction of
the sentence imposed by the trial court.
19.In the decision reported in 1985 SCC Crl.Page 359 - Sadha Singh
vs. State of Punjab, the Supreme Court held that:
"What ought to be the proper sentence in a given case is left to the
discretion of the trial court, which discretion has to be exercised on sound
judicial principles. Various relevant circumstances which have a bearing on
the question of sentence have to be kept in view. However, in an appeal against
the conviction, it is open to the High Court to alter or modify or reduce the
sentence after confirming conviction. If the High Court is of the opinion that
the sentence is heavy or unduly harsh or requires to be modified, the same must
be done on well recognised judicial dicta."
20.Considering the dictum laid down in the above decision, along
with the age of the accused and his antecedents, while confirming the conviction
of the appellant under Section 307 IPC, we are inclined to reduce the quantum of
sentence of life sentence into a term of five years rigorous imprisonment.
21.In the result, the appeal is allowed in part and the conviction
of the appellant under Section 307 IPC is confirmed and the sentence of life
imprisonment is modified into one of five years rigorous imprisonment.
The sentence already undergone by the appellant is directed to be given set off
under Section 428 of the Code of Criminal Procedure.
gb
To
1. THE ADDITIONAL SESSIONS JUDGE
(FAST TRACK COURT), RAMANATHAPURAM
2. THE INSPECTOR OF POLICE
KOVILANGULAM POLICE STATION, KOVILANKULAM
3. THE ADDITIONAL PUBLIC PROSECUTOR,
MADURAI BENCH OF MADRAS HIGH COURT, MADURAI
4. THE SUPERINTENDENT, CENTRAL PRISON, MADURAI
5. THE DIRECTOR GENERAL OF POLICE
MYLAPORE, CHENNAI - 4
6. THE DISTRICT COLLECOR, RAMANATHAPURAM
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