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R.Shankar v/s State rep by The Inspector of Police, K-1, Sembiyam Police Station

    Criminal Appeal No.202 of 2009

    Decided On, 27 August 2009

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE C. NAGAPPAN & THE HONOURABLE MR. JUSTICE M. JEYAPAUL

    For the Appellant: R.John Sathyan, Advocate. For the Respondent: Hassan Mohamed Jinnah, Additional Public Prosecutor.



Judgment Text

M. JEYAPAUL, J.


The single accused, who was convicted for offence under section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/= in default to undergo three months rigorous imprisonment, moves this present appeal.



2. On the side of the prosecution, P.Ws.1 to 14 were examined and Exs.P1 to P14 and M.Os.1 to 6 were marked. There is neither oral nor documentary evidence on the side of the accused.


3. The brief case of the prosecution as unfolded by the witnesses reads as follows:-


(i) The deceased Shanthi is the mother of PW1 Geetha, PW2 Kabil and PW3 Mohana. The husband of Shanthi died about five years prior to the occurrence. Shanthi, thereafter, developed illicit intimacy with the accused Shankar who was an auto driver. PW1 Geetha was married to one Kutty. She lived alongwith her husband in a separate house. PW2 Kabil and PW3 Mohana also resided alongwith PW1 Geetha. The accused was a drunkard. He used to pick up frequent quarrel with Shanthi.



(ii) On 14.2.2008 at about 8.00 pm Shanthi came down to the house of PW1 which was located at Palaniandavar Koil Street, Perambur. Shanthi informed PW1 to PW3, her children that the accused harassed her having taken liquor and therefore, she had decided not to go and live with him again. PW1 appeased her saying that the current life was her own making and therefore, she should put up with such a wretched life.



(iii) The accused came down to the house of PW1 searching for Shanthi. The accused asked PW1 to send Shanthi alongwith him. As the accused was fully drunk and had tortured her mother, PW1, at the first instance, refused to send her mother to the house of the accused. But, the accused promised that he would not harass Shanthi thereafter. He appealed to PW1 to send Shanthi alongwith him. Believing such assurance of the accused, PW1 sent Shanthi to the house of the accused.


(iv) PW1 and PW2, having suspected some foul play, got up in the early morning on 15.2.2008 and went to the house of the accused which is located two kilometres away from her house at about 5.00 am. When P.Ws.1 and 2 opened the main gate, they heard the quarrel between the accused and the deceased. The quarrel continued for about two minutes. The accused pushed down her mother and having taken a small crowbar M.O.1, attacked Shanthi twice on her head and caused instantaneous death and sped away from the scene of occurrence alongwith the weapon of offence.


(v) P.Ws.1 and 2 went inside the house of the accused and found the deceased dead in a pool of blood.


(vi) PW1 rushed to the Sembiyam Police Station at about 6.00 am on 15.2.2008 and lodged a complaint, Ex.P1 to PW13 R.Silambu Chelvan, Sub-Inspector of Police attached to the said police station. PW13, having received the complaint, Ex.P1, registered a case in Crime No.180/2008 under section 302 of the Indian Penal Code and prepared the printed FIR, Ex.P11. He despatched the same to the learned Judicial Magistrate and copies thereof to the higher officials.


(vii) PW14 K.Sivamani, Inspector of Police attached to Sembiyam Police Station, took up the case for investigation. He went to the scene of occurrence, prepared observation mahazar, Ex.P2 in the presence of PW7 Mariadoss and another witness and drew rough sketch reflecting the scene of occurrence. He recovered blood stained tile M.O.2 and sample tile M.O.3 under relevant seizure mahazar, Ex.P13 in the presence of the very same witnesses. He also arranged to take photograph of the scene of occurrence through a photographer.


(viii) PW14 conducted inquest in the presence of the witnesses and panchayatdars and prepared inquest report, Ex.P14.



(ix) PW14 examined the witnesses Geetha, Kabil, Mohana, Kutty, Chandra, Sumathy, Kumar and Sasidharan and recorded their statements.


(x) On 16.2.2008 at about 9.00 am, the accused was arrested at Madhavaram High Road in the presence of PW10 Parthasarathy and another witness by name Shanmugasundaram. On the basis of the admissible portion, Ex.P6 found in the confession statement voluntarily given by the accused, the crowbar M.O.1 was recovered from a thorny bush near the EB office located at Madhavaram High Road. The accused was, thereafter, sent for judicial remand. The material objects were also sent for chemical examination.


(xi) PW9 Dr.Udayashankar, having received the request from PW14, commenced post mortem on the dead body of Shanthi at 11.30 am on 16.2.2008. He found the following injuries on the dead body of Shanthi.



"Cut injuries: Clear cut injuries with well defined margins seen over (1) left ear 4x1 cm horizontally. (2) Two cut injuries over the left temporal region 6x2 cm, 4x2 cm with 3 inches apart seen one below the other (3) left parietal region 6x2x1 cm, Scalp Sub-scalp clots seen over the left parietal and right temporal regions Skull Fracture Posterior cranial fossa at the junction of the middle and posterior cranial fossa. Brain: Blood clots seen in all the lobes. Heart: Blood clots seen in all the chambers. Lungs: Both lungs oedematous and adherent to the inter costal muscles. Larynx, Trachea, Liver, Spleen, Kidneys: Normal Hyoid Bone: Intact. Stomach: Empty. Bladder, Uterus: Normal & empty. Pelvis: Normal & intact. Scalp, bones, membranes & brain vide injury column. Spinal column: Normal & intact."


He opined in the post mortem report, Ex.P4 that the deceased Shanthi appeared to have died of complications of head injuries.


(xii) PW14, Inspector of Police received M.O.4 saree, M.O.5 jacket, M.O.6 petticoat from PW8 Davis, post mortem Constable who seized the same from the dead body after post mortem examination was over.


(xiii) PW12, Kamalatchi Krishnamoorthy, the Serologist has spoken to the serology report, Ex.P10 issued by her.


(xiv) PW14, having examined all the witnesses in this case, completed investigation and laid final report as against the accused under section 302 of the Indian Penal Code.


(xv) The accused completely denied the incriminating circumstances spoken to by the witnesses examined on the side of the prosecution when he was questioned under section 313 of the Code of Criminal Procedure. He came out with a lengthy written statement when he was examined under section 313 of the Code of Criminal Procedure. It is virtually a written argument submitted by the accused. At any rate, it is found that he has categorically denied each and every incriminating circumstance spoken to by the prosecution witnesses.


4. PW9 Dr.Udayasankar, who conducted the post mortem examination on the dead body of Shanthi, has found a cut injury on the left ear and two cut injuries over the left temporal region and another one on the left parietal region. Blood clots were seen in all the lobes of the brain and all the chambers of the heart. He has opined that Shanthi had died of complications due to head injuries sustained by her. The evidence of PW9 Dr.Udayasankar in the background of the post mortem report, Ex.P4 issued by him would establish that the deceased died due to homicidal violence.


5. The prosecution relies upon the ocular testimony of PW1 Geetha and PW2 Kabil in order to establish the case of the prosecution. PW1 Geetha and PW2 Kabil are none other than the son and daughter of the deceased Shanthi. PW3 Mohana is also the younger daughter of the deceased Shanthi. P.Ws.1 to 3 have categorically spoken about the frequent quarrel that emanated between the accused Shankar and the deceased Shanthi. It is also on record that the accused Shankar had developed illicit intimacy with the deceased for the past about five long years after the demise of the husband of Shanthi. P.Ws.2 and 3 have resided alongwith their sister PW1 who was married. P.Ws.1 to 3 have testified that on 14.2.2006 at about 8.00 pm, the deceased Shanthi came to their house and informed that the accused Shankar, having fully drunk, tortured Shanthi and therefore, she did not like to live with the accused Shankar any more. PW1 and PW2 have spoken to the fact that it was only PW1 who appeased the deceased Shanthi and sent her alongwith the accused Shankar when he had come to their house to take Shanthi alongwith him.


6. P.Ws.1 and 2 had, in fact, taken the deceased Shanthi to the house of the accused Shankar and left her over there at about 10.00 pm on 14.2.2008 and got back to their home. P.Ws.2 and 3 have deposed that P.Ws.1 and 2 went to the house of the accused in the morning on 15.2.2008 to see what actually happened to her mother who was sent to the house of the accused. P.Ws.1 to 3 have established the quarrel picked up by the accused with the deceased the previous day and the compromise arrived at between them.


7. Coming to the ocular testimony of P.Ws.1 and 2, we find that they had gone to the house of the accused at about 5.00 am on 15.2.2008. They found that the accused picked up quarrel with the deceased when they just opened the main gate of the house of the accused. They have also deposed that the accused, having first pushed down their mother Shanthi, took the crowbar M.O.1 lying over there and attacked her on the head twice and caused instantaneous death. They have also spoken to the fact that they have not chosen to take Shanthi to the hospital as she had already expired.


8. On the basis of the confession statement given by the accused to the effect that the weapon of offence M.O.1 was hidden in a thorny bush near EB Office located at Madhavaram Main Road, M.O.1 was recovered by PW14 in the presence of PW10 Parthasarathy. From the evidence of PW12 Kamalatchi serology report Ex.P10, we find that the weapon M.O.1 was found with human blood of 'B' group. The said blood group tallied with the blood group found in the apparels of the deceased recovered from her dead body. The sample blood taken from the deceased Shanthi would disclose that she had blood group of 'B'.


9. The learned counsel appearing for the appellant would submit that P.Ws.1 and 2 are only chance witnesses. There was no reason for them to be present at the house of the accused at 5.00 am on 15.2.2008. It is his further submission that their evidence appear to be quite artificial.


10. Learned Additional Public Prosecutor would submit that there was every reason for P.Ws.1 and 2, who are none other than the daughter and son of the deceased Shanthi who lived with the accused, to be present at the house of the accused. Referring to the evidence of P.Ws.1 and 2, he would submit that they, in fact, suspected some foul play and therefore, they had gone to the house of the accused to see their mother in the early morning. P.Ws.1 and 2 are the children of the deceased Shanthi. The previous day, there was a quarrel between the accused and the deceased. P.Ws.2 and 3 have spoken to the fact that they wanted to see their mother in the morning as there was a quarrel during the previous night. P.Ws.1 and 2 had already lost their father. Quite probably, P.Ws.1 and 2 would not have ventured to take chance as there was a quarrel between the accused and the deceased on the same night. It is also on record that the house of the accused was not located far off from the house of PW1. They had taken a share auto and went to the house of the accused at 5.00 am to see their mother. There is nothing artificial in the evidence of P.Ws.1 and 2 that they proceeded to the house of the accused in the early morning.


11. It is submitted by the learned counsel appearing for the appellant that none of the neighbours or any independent witness was examined to corroborate the evidence of P.Ws.1 and 2 who are the children of Shanthi. We find that the occurrence had taken place at 5.00 am. The sketch would reflect that the accused and the deceased had lived in an independent house. Sometimes there may be witnesses to see such an occurrence at the early morning. Sometimes, there may not also be witnesses to see such an occurrence in the early morning. It all depends upon the location of the house and the habits of the residents of the said location. We find that the evidence of P.Ws.1 and 2 is quite natural and believable. Therefore, no corroboration is required from any independent source to support the version of P.Ws.1 and 2.


12. The records would establish that at 6.00 am, the FIR, Ex.P1 was registered by PW13. But, unfortunately, PW1 would state that she gave the complaint at 7.00 am on 15.2.2008. PW2 would state that the complaint was given at about 8.00 am and PW3, on her part, would come out with a different version that the complaint was given at about 10.00 am. It is to be noted that PW13, Silambu Chelvan, Sub Inspector of Police attached to Sembiyam Police Station has come out with a categorical version that at about 6.00 am the complaint was lodged by PW1. Considering the avocation of P.Ws.1 to 3 and their background, we find that they might have been confused with the exact time at which PW1 went to the police station and lodged the complaint. Much weight cannot be attached to such a discrepancy as to the time of lodging the complaint with the police by PW1. PW14 has categorically stated that he rushed to the scene of occurrence immediately after he received the FIR.


13. The learned counsel appearing for the appellant would submit that there is a whopping delay of eleven hours in despatching the FIR to the learned Judicial magistrate. On record, it is found that the first information report which was registered at 6.00 am on 15.2.208 reached the learned Judicial Magistrate at 5.00 pm on the same day.


14. The learned Additional Public Prosecutor in this context would submit that the statements of P.Ws.1 and 2 and the inquest report, Ex.P14 reached the court of the learned Judicial Magistrate at 10.00 pm on 15.2.2008 itself. PW14, the investigating officer has examined as many as eight witnesses during the course of inquest. Therefore, the registration of the first information report at 6.00 am on 15.8.2008 cannot be suspected.


15. As rightly pointed out by the learned Additional Public Prosecutor, we find that PW14, the investigating officer has done a laborious job of examining about eight witnesses during the course of inquest. He has also examined P.Ws.1 and 2 and recorded their statements under section 161 of the Code of Criminal Procedure and the inquest report as well as the statements of P.Ws.1 and 2 had reached the court at 10.00 pm on 15.2.2008. If at all the first information report was registered just before 5.00 pm on 15.2.2008, the aforesaid laborious task would not have been undertaken within a span of few hours by the investigating official. Of course, there is some delay in despatching the first information report. But, the said delay does not create a dent in the case of the prosecution in view of the above facts and circumstances.


16. The learned counsel appearing for the appellant would submit that there is virtually no disclosure statement given by the accused which ultimately led to the recovery of the crowbar M.O.1. We find that the accused has categorically stated in the confession that he had thrown the weapon of office M.O.1 towards a bush near the EB office located at Madhavaram High Road. Such a specific version disclosed by the accused had ultimately led to the recovery of M.O.1. Though the concluding portion of the confession statement was recorded in a third person form, we find that the relevant disclosure in the mid of the confession statement leading to recovery was given by him in first person form. Further, the recovery of M.O.1 was spoken to by PW10 Parthasarathy who witnessed the recovery of M.O.1 by PW14, the investigating official.


17. It is to be noted that PW1 Geetha and PW2 Kabil who witnessed the occurrence have also identified the weapon M.O.1 as that of the weapon of offence which was wielded by the accused at the time of attacking their mother. To top it all, it is found from Ex.P10 serology report that blood group found in M.O.1 tallies with the blood group of the deceased as well as the blood group found in the apparels of the deceased.


18. The learned counsel appearing for the appellant would submit that Form 95 despatched by PW14 to the learned Judicial Magistrate and the mahazar prepared by him for recovery of M.O.1 did not disclose the blood stains found on M.O.1 PW10 and PW14 have categorically deposed that the weapon was stained with blood. The blood stained crowbar alone was sent to the learned Judicial Magistrate for examination. PW12 serologist has also spoken to the fact that blood stained weapon was analysed and it was found with human blood of 'B' group. In the above facts and circumstances, the omission made by PW14 in Form 95 and in the mahazar, Ex.P7 would not go to the root of the case.


19. The learned counsel appearing for the appellant would submit that PW10 Parthasarathy has candidly admitted that the weapon of offence was recovered in a public place and not in a secluded location where there was no access to the public.



20. PW10 has deposed during the chief examination that the weapon was recovered from a thorny bush near EB office at Madhavaram High Road. During the course of cross-examination, he had understood the question fielded to him relating to the location of EB office at Madhavaram High Road. As it is found that the weapon was recovered not on the road or in the open place near the EB office and it was recovered only from a thorny bush near EB Office, we find that the recovery of the M.O was only pursuant to the disclosure statement given by the accused.



21. Lastly, it is submitted by the learned counsel appearing for the appellant by way of alternative submission that the occurrence should have taken place on account of sudden provocation provided by the deceased to the accused. He also would submit that the act of the accused would fall either under the exception (1) or (4) of section 300 of the Indian Penal Code.


22. The learned Additional Public Prosecutor would submit that there is evidence to show that there was a quarrel between the accused and the deceased on the previous night. P.Ws.1 and 2 had, in fact, suspected foul play. In fact, the weapon of offence, the seat of injury and the manner of attack would go to show that there was some pre-meditation to commit the homicidal violence.


23. We find that there is much force in the submission made by the learned Additional Public Prosecutor. P.Ws.1 to 3 have spoken to the fact that there were frequent quarrel between the accused and the deceased. Even during the previous night, there was a quarrel and therefore, the deceased Shanthi came down to the house of PW1 saying that she had no idea to go back to the house of the accused to live wi

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th him anymore. PW1 and PW2 had suspected some foul play and therefore, they had went to the house of the accused in the early morning at 5.00 am to ensure the safety of the deceased. The evidence of P.Ws.1 and 2, the ocular witnesses would disclose that the accused first pushed down the deceased and thereafter attacked her with the lethal weapon M.O.1 not once but twice on her head and caused instantaneous death. There is also nothing on record to suggest that there was any sudden provocation for the accused to react in such a violent fashion. Further, we find that the accused had taken undue advantage of the unarmed victim at the time he launched attack on her. 24. Of course, the learned counsel appearing for the appellant, referring to the confession statement of the accused, would submit that the deceased, just before the occurrence, called the accused as "baadu" which would mean impotent and that therefore, the accused had reacted in such a violent fashion. The family background of the accused and the deceased, the frequent quarrel emanated between them and the drinking habit developed by the accused would go to suggest that such a scolding would not have provided a sudden provocation to the accused to react in such a fashion. Therefore, we find that the accused had attacked the deceased having picked up quarrel with the deceased for two minutes with an intention to cause her death and committed murder. The seat of injury, the weapon of offence and the manner of attack would amply demonstrate the intention harboured by the accused to cause death of the deceased. 25. We find that the prosecution has established beyond reasonable doubt that the accused attacked the deceased with an intention to cause her death and committed murder punishable under section 302 of the Indian Penal Code. The Trial Court has rightly returned a verdict of conviction under section 302 of the Indian Penal Code and sentenced as stated supra. There is no warrant for interference with the well considered judgment of the Trial Court. 26. Therefore, the appeal fails and it stands dismissed.
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