EDISON PRABHU Vs. STATE

JUDGEMENT

(1.) Challenge is made to a judgment of the Principal Sessions Judge, Ramanathapuram made in S.C. No.218 of 2009 on 24.03.2010, whereby the accused / appellant stood charged, tried and found guilty under Section 302 IPC and awarded life imprisonment with a fine of Rs.1,000/- and default sentence.

(2.) The short facts that are necessary for the disposal of this appeal can be stated as follows:- a) The accused-Edison Prabhu, the deceased-Sahaya Joseph Ponsaka and P.W.8-Edwinraj are brothers and P.W.2-Selinmary is their mother. P.W.1-Vanitha is the wife of the deceased and a resident of Keelakadu, Rameswaram. P.W.5- Jamesmary is the sister of P.W.2. P.W.6-Soosaimuthu is the husband of P.W.5. P.W.4-Breston is the son of P.Ws.5 and 6. P.W.1 and the deceased were living in one house, while P.W.2 and the accused were living in the opposite house. P.Ws.5 and 6 were living nearby. The deceased was demanding partition of the family properties from P.W.2. Thereafter, P.W.13-Document Writer was requested by P.W.2 to write the document of partition. P.W.13 asked for certain documents which were not given and hence the document of partition could not be written. P.W.8, who is another brother of the accused, was also demanding partition of the family properties. On an earlier occasion, when such a demand was made by P.W.8, the accused took a spade to attack him and thereafter, the family of P.W.8 shifted their residence from Keelakadu to Thangachimadam. b) While the matter stood thus, on the date of occurrence, that was on 06.04.2009 at about 4.30 p.m., P.W.1 was sitting in front of her house. P.Ws.5 and 6 were sitting and chatting outside the house. At that time, the deceased came and made an attempt for partition of the properties on P.Ws.5 and 6. On hearing this, the accused shouted. Immediately the deceased got into the house, took a scissor and attempted to stab the accused, which caused some simple injuries below the left eye of the accused. Then the accused continued to shout again. Therefore, the deceased got into the house, took a knife and attempted to stab the accused, but at that time, P.W.1 snatched the knife from the deceased and threw it. On seeing this, the accused / appellant got into the house, took an aruval and attacked the deceased on the left side of his neck, due to which the deceased died on the spot itself. This was witnessed by P.Ws.1 to 4. Then, immediately the accused ran away from the place. c) P.W.16-Sub-Inspector of Police, on receipt of an intimation through phone, proceeded to the spot, where he recorded the complaint from P.W.1 under Ex.P1. On the strength of Ex.P1, a case came to be registered in Crime No.128 of 2009 under Section 302 of the Code. Ex.P15-Express F.I.R. was despatched to the Court and the copies were also sent to the higher-ups. d) On receipt of copy of the FIR and the complaint, P.W.17, the Inspector of Police, took up the investigation, proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared Ex.P16-Observation Mahazar and Ex.P17-Rough Sketch. Then he recovered M.Os.3 and 4-Knife and Scissor respectively, from the place of occurrence under a cover of Ex.P18- Seizure Mahazar. He also recovered M.Os.5 and 6-blood-stained earth and sample earth respectively, under a cover of Ex.P19-Seizure Mahazar. Thereafter, he sent the dead body for the purpose of conducting autopsy, to the Government Hospital, Rameswaram. On the next day, that was on 07.04.2009 at 7.00 a.m., he went to the hospital and conducted inquest over the dead body of the deceased in the presence of witnesses and panchayatars and prepared Ex.P20-Inquest Report. e) P.W.9, the Doctor attached to the Government Hospital, Rameswaram conducted autopsy on the dead body of the deceased and she gave her opinion under Ex.P5-Post Mortem Certificate, that the deceased would appear to have died out of shock and haemorrhage due to cut injury to neck about 12 to 24 hours prior to autopsy. f) On the very day, i.e. 07.04.2009, P.W.17 arrested the accused. When enquired, he came forward to give a confessional statement and the same was recorded in the presence of witnesses. The admissible portion of the confessional statement of the accused is marked as Ex.P13. On the basis of the confessional statement, he produced M.O.1-Aruval which was recovered under a cover of Ex.P14-Seizure Mahazar. Then he was sent to the Government Hospital, Rameswaram. P.W.9, who conducted post mortem on the dead body of the deceased, medically examined the accused at 6.40 p.m. on that day, and issued Ex.P6- Accident Register copy, wherein the injuries sustained by him are mentioned. Thereafter, the accused was sent for judicial remand. g) All the material objects were subjected to chemical analysis by the Forensic Department which brought forth two reports, viz. Ex.P8-Chemical Analyst's Report and Ex.P9-Serologist's Report. h) After completion of the investigation, P.W.17 went on leave. Therefore the successor of P.W.17, viz. P.W.18, took up the file, completed the enquiry and filed final report against the accused under Section 302 IPC, before the concerned court, which in turn committed the case to the court of sessions and necessary charges were framed. i) In order to substantiate the charges, at the time of trial, the prosecution examined 18 witnesses and relied on 21 exhibits and 6 material objects. On completion of the evidence on the side of the prosecution, the accused/appellant was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. No defence witness was examined. After hearing the arguments of the counsel and looking into the available materials, the Trial Court, took the view that the prosecution has proved the case beyond reasonable doubt in respect of the charge levelled against the accused and found him guilty and awarded the punishment as referred to above. Under these circumstances, this criminal appeal has arisen at the instance of the accused/appellant.

(3.) Advancing the arguments on behalf of the accused / appellant, the learned Senior Counsel would submit that in the instant case, the prosecution came forward with a specific case that pursuant to a quarrel for division of the family property, the accused / appellant attacked the deceased with M.O.1-Aruval at 4.30 p.m. on 06.04.2009 in front of the residence. In order to substantiate the same, the prosecution examined P.Ws.1 to 4 as eye-witnesses, out of whom, P.Ws.2, 3 and 4 have turned hostile. Hence, the prosecution is left only with the evidence of P.W.1. The evidence of P.W.1 was not only self-inconsistent, but also on applying the careful scrutiny test, it should have been rejected by the Trial Judge outright, since it is against all the circumstances put forth by the prosecution. Even the medical opinion canvassed did not corroborate the ocular testimony of P.W.1. The claim of the investigator that the accused was arrested on 07.04.2009 at about 12.00 noon and that he came forward to give a confessional statement and the admissible portion of the same has been marked as Ex.P13, were all created documents in order to suit the prosecution case and hence the evidence produced in that regard, were shaky. Hence, the Trial Judge should have rejected that part of the evidence. Therefore according to the counsel, when the evidence is filled with all reasonable doubts, the accused / appellant is entitled for acquittal in the hands of this Court, but the Trial Judge has taken an erroneous view in convicting the accused / appellant under Section 302 IPC and awarding the punishment as referred to above.