MOHD FAZLUDDIN Vs. STATE

JUDGEMENT

(1.) THE appellant in this appeal stands convicted in Sessions Case No.587 of 2003 on the file of the Principal Court of Sessions, Chennai under Section 302 of the Indian Penal Code, for which he stands sentenced to undergo imprisonment for life together with a fine of Rs.100/-, carrying a default sentence. Hence he is before this Court in this appeal. Heard Mr. I. Subramaniam, learned senior counsel appearing for the appellant and Mr. N.R. Elango, learned Additional Public Prosecutor for the State. THE case of the prosecution is that between 7 and 9 pm on 18.9.2002, the accused killed his co-worker, namely Sajitha Parveen (a lady) since she refused to respond to the love and affection, which the accused extended to her, by flatly rejecting the proposal for marriage. To prove their case, the prosecution examined P.Ws.1 to 7, besides marking Exs.P.1 to P.16 and M.Os.1 to 15. On the side of the defence, two witnesses were examined as D.Ws.1 and 2 and two exhibits as Exs.D.1 and D.2 came to be marked.

(2.) P.W.3 is a partner of a Departmental Store called "Chennai Foods" situated in II Avenue, XII Main Road, Anna Nagar, Chennai. In all, 25 people consisting of men and women were working in the Store. The accused was employed in that store as Store Keeper. Sajitha Parveen - deceased in this case was also working in that Store. The sales counter of the Store is in the ground floor of the building and in the first floor, the Store Room of the Departmental Store is located. There is only one way to go to the first floor. On reaching the first floor, the first room is occupied by the Managing Director in the adjoining second room, there is a Computer and the third room is the Store Room. The computer room and the Managing Director's room are air-conditioned. On 18.9.2002, sales was going on in the Store. Normally, upto 9 pm, there would be customers. On the occurrence day, the accused and the deceased were on duty. On the occurrence day at about 9 pm, P.W.3 was in the ground floor. P.Ws.1 and 2 are also employed in the Departmental Store. Both P.Ws.1 and 2 came down and P.W.1 informed P.W.3 that the Store Room is found locked. P.W.3 went upstairs, took the alternate key from the Managing Director's room and gave it to P.W.1. Then P.W.3 came down. On opening the Store Room, both P.Ws.1 and 2 came running to the ground floor stating that both the accused and the deceased were lying inside the Store Room with bleeding injuries. P.W.3 accompanied P.Ws.1 and 2 to the first floor, where on opening the door of the Store Room, he found Sajitha Parveen lying on the floor and the accused was also by her side. There was a blood stained knife nearby. Both the accused and Sajitha Parveen had bleeding injuries. He found Sajitha Parveen already dead. M.O.1 is the knife. P.W.3 informed the investigating police station. P.Ws.1 and 2 are co-workers with the accused and the deceased in the Departmental Store run by P.W.3. The evidence of P.W.1 shows that the Store Room is used for keeping all articles meant for sale in the Departmental Store. On the occurrence day, P.W.1, the accused and the deceased were all working in the Store. At about 9 pm, a customer came to the shop and wanted some edible oil. Therefore, to get the oil from the Store Room, P.Ws.1 and 2 went up to the store room, where they found that the lights in the verandah leading to the store room were switched off. They found the door of the store room locked. There is a knob inside the door of the store room and if the knob is rotated from inside, the door would open. However, to open the locked door from outside, key is necessary. From the Managing Director's room, P.W.2 collected the key to the Store Room and with that key, P.W.1 opened the door of the Store Room. At that time, P.W.2 was standing by his side. P.W.1 switched on the light in the verandah and then when he opened the door of the store room, he found blood on the floor. A little away, he saw the accused sitting in a slanting position and he had a bleeding injury on his neck. M.O.1 was lying by the side of the accused. Sajitha Parveen was also lying on the floor, close to the accused. On her were two gunny bags. He noticed blood on the person of Sajitha Parveen. Sajitha Parven was speechless. Immediately, P.Ws.1 and 2 informed P.W.3, who came up and observed the entire scene. Then P.W.3 came down and telephoned his father and thereafter to the police. The police arrived at the scene. At the spot itself, P.W.1 gave the complaint, which is Ex.P.1. On the occurrence day at about 3 pm, P.W.1 went to the store room, where he found the accused sitting in an agitated mood. When questioned, the accused was evasive. At that time, Sajitha Parveen told him that the accused is sitting there as an annoyed person. P.W.1 knew that between the accused and the deceased, there used to be often quarrel. After removing some article at that time from the Store Room, P.W.1 went down. At 7 pm on that night, P.W.1 again went to the Store Room and at that time, the accused persuaded P.W.1 to go down since there is no more work in the Store Room. The evidence of P.W.2 is more or less on the same lines as spoken to by P.W.1.

(3.) MR. I. Subramaniam, learned senior counsel appearing for the appellant would contend that from the probabilities that could be inferred from the evidence of P.Ws.1 to 3 available in this case, this Court could easily visualise would show that both the accused and the deceased could have been attacked by an unknown assailant, who in all probability, would have come to the Departmental Store to steal cash. According to the learned senior counsel, it is possible to conclude from the evidence of P.Ws.1 to 3 that when the accused in the company of the deceased attempted to prevent the thief entering the cash room, both would have been attacked and pushed inside the store room. According to the learned senior counsel, after so attacking, the unknown assailant might have made good his escape by closing the door from outside, while leaving. Admittedly, the prosecution evidence do not show any motive for the accused to commit the crime. Therefore, learned senior counsel reiterated his submission that this is a clear case where both the accused and the victim, Sajitha Parveen had come to be attacked by an unknown assailant and unfortunately, Sajitha Parveen succumbed to the injuries. To hold the accused guilty for the offence of murder, there must be strong evidence and from the evidence of P.Ws.1, 2 and 3, it is not possible to conclude so, since they are admittedly not eye witnesses to the crime. Their only evidence against the accused is that he was found injured in the very same room in which Sajitha Parveen was found dead with the door of the room closed. Alternatively and without prejudice to the above submissions, learned senior counsel would contend, by taking us through Ex.P.5, the confession statement stated to have been given by the accused to the police on his arrest, that the materials available in the confession statement would show that Exception-1 to Section 300 of the Indian Penal Code would stand squarely attracted. Having regard to the age of the accused on the date of the occurrence, which should be around 22 or so, this Court can consider granting him a lenient sentence while altering the conviction. It is also brought to our notice by the learned senior counsel that there is a serious discrepancy as to who took the accused to the hospital. In opposing these arguments, the learned Additional Public Prosecutor would contend that this is a clear case of murder committed by the accused by killing Sajitha Parveen. A duty is cast upon the accused to explain as to how he came to sustain the injuries, when he was found in the very same room where the deceased was found lying dead. However, when the accused was questioned under Sectioned 313 of the Code of Criminal Procedure, he denied each and every circumstance put up against him as false and contrary to facts. He has not come out with any explanation at all. According to the learned Additional Public Prosecutor, on the facts available in this case, Exception-1 to Section 300, I.P.C. would not be attracted. MR. I. Subramaniam, learned senior counsel replied by stating that the accused is shown to have filed a written statement before the Court of Sessions at the end of his questioning and the case bundle handed over to him by the counsel on record contains a copy of the said written statement, but unfortunately, it is not available in the records. But nonetheless, it is contended by MR. I. Subramaniam, learned senior counsel that in Ex.P.5, the accused had explained as to how he came to sustain the injuries. According to the learned senior counsel, when there is no legal bar to use that statement in favour of the accused and if it contains favourable materials therein, then this Court can definitely take those materials into account while considering the appellant's case. Learned senior counsel brought to our notice the following judgments, not only in support of the plea that the confession statement of the accused can be used in his favour, but also to sustain his point that Exception-1 to Section 300, I.P.C. is attracted to the case on hand. The following are the case laws : 1972 Law Weekly (Criminal) 34 [Vadivel Padayachi In re.] 1974 Criminal Law Journal 381 [In re. Ganesan] 1996 (2) Madras Weekly Notes (Criminal) 322 [Koolu alias Kottaiya Pilla vs. State] 1997 (1) Madras Weekly Notes (Criminal) 320 [Sathiyanathan vs. State]