Ajith @ Ajamaitheen vs State

M. Chockalingam, J.—The sole accused in a case of murder, who stood charged under Sections 307 and 302 IPC, tried, found guilty under Sections 324 and 302 IPC and was sentenced to undergo life imprisonment and to pay a fine of Rs. 2000/-, in default to undergo RI for one year u/s 302 IPC and was also sentenced to undergo two years RI u/s 324 IPC, has brought forth this appeal from the judgment of the learned Principal Sessions Judge, Madurai made in S.C. No. 630 of 2004.

The short facts necessary for the disposal of this appeal can be stated thus:

a) P.W.2 is the brother of P.W.1. The deceased Rasool Beevi is the Aunt of P.Ws.1 and 2. The marriage between the accused and P.W.1 took place before 10 years. There was strained relationship between them and P.W.1 was living in her parental home. The accused gave a petition before the Jamath at Ananjiyur, where P.W.7 was the Secretary. They were called for conciliation, but it did not fructify. Then, the matter was referred to Kalimangalam Jamath, where P.W.8 was the Secretary. All the parties were called on 23.2.2003 for the purpose of conciliation. P.Ws.1 to 3, the deceased and also the accused all went over there. Even after a long enquiry and advice, it did not fructify and hence, they were advised to take necessary proceedings.

b) P.Ws.1 and 2 accompanying the deceased were going through the tank bund, while P.W.3 took the cycle and went through the road. When all came near the scene of occurrence, P.W.1 was proceeding at first and the deceased was coming behind her. P.W.2 was also coming back. At that time, the accused came over there with aruval M.O.1 and attacked P.W.1. Immediately, the deceased came to her rescue. The accused uttered that you are responsible for all the things and so saying, he gave cut on her head and she fell down. Immediately, the accused fled away from the place of occurrence.

c) The injured P.W.1 and the severely injured Rasool Beevi were taken in a Car to the Government Rajaji Hospital, Madurai, where the severely injured Rasool Beevi was declared dead. P.W.5, the Doctor attached to the Government Hospital, had medically treated P.W.1. He has noted the injuries in Ex.P.5, the accident register. On 23.2.2003 at about 4.00 p.m., an intimation was received by P.W.12, the Head Constable of Silaiman Police Station. On receipt of the intimation, he rushed over to the Government Hospital, Madurai, where a statement was given by P.W.1 to P.W.12, on the strength of which, a case came to be registered by the respondent police in Crime No. 49 of 2003 under Sections 307 and 302 IPC. Ex.P.20, the FIR was despatched to the Court.

d) P.W.13, the Inspector of Police, on receipt of the copy of the FIR, took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.12, the observation mahazar and Ex.P.21, the rough sketch. He has recovered the material objects from the place of occurrence under a cover of mahazar. Then, he proceeded to the Government Rajaji Hospital, Madurai and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.22, the inquest report. Following the same, he sent the dead body of the deceased for the purpose of autopsy along with the requisition.

e) P.W.4, the Doctor attached to the Madurai Medical College Hospital, on receipt of the requisition, has conducted autopsy on the dead body of the deceased. He has issued Ex.P.4, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of external injury Nos. I and II and its corresponding internal injuries about 20-24 hours prior to post-mortem.

f) The Investigator came to know that the accused surrendered before the Judicial Magistrate, Manamadurai. He filed a memo for police custody and the same was ordered. When the accused was enquired, he voluntarily gave a confessional statement, which was recorded in the presence of the two witnesses, the admissible part of which was marked as Ex.P.14. Pursuant to the same, the accused produced M.O.1, aruval, which was recovered in the presence of the witnesses under a cover of mahazar. The accused was sent for judicial remand. The statements of P.Ws.1 and 2 were recorded u/s 164 Cr.P.C by the Judicial Magistrate concerned. Ex.P.7(series) are the statements recorded from them. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and also M.O.1, aruval recovered from the accused pursuant to the confessional statement were subjected to chemical analysis by the Forensic Science Department, which resulted in two reports, namely Ex.P.18, the Chemical Analyst''s report and Ex.P.19, the Serologist''s report. On completion of the investigation, the Investigating Officer has filed the final report.

The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has examined 13 witnesses and relied on 22 exhibits and also 8 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 Cr.P.C as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. On completion of the trial, the trial court heard the arguments advanced on either side and scrutinised the materials available and has found the appellant/accused guilty as per the charge of murder and awarded life imprisonment and in respect of the other charge, he was found guilty u/s 324 IPC and was awarded imprisonment, as referred to above. Hence, this appeal has been brought forth before this Court.

The learned Counsel for the appellant, inter-alia, has made the following submissions:

a) In the instant case, P.Ws.1 to 3 have been examined as eyewitnesses. P.W.1 is the wife of the accused and they were under strained relationship. Aggrieved the accused, went to the Jamath and actually, the talks before the Jamath, did not fructify. According to the accused, she was not living at that time and there was strained relationship. Hence, no one could expect her to talk truth and thus, P.W.1 has implicated the accused falsely. Insofar as P.W.2 was concerned, P.W.2 was actually against the accused, who is the brother-in-law of P.W.2. Actually, the defence before the lower court was that, there was a dispute over the property between P.W.2 and the deceased. When it was so, the deceased advised him to go to some other place and live. Accordingly, P.W.2 went over to Karuppayurani. He has got large number of properties, but he was eking out his livelihood by earning everyday. Since, he was aggrieved against the accused, he has given false evidence.

b) Insofar as P.W.3 was concerned, even according to the prosecution, he did not accompany P.Ws.1 and 2 and the deceased and at the time of occurrence, he went in a bicycle and hence, P.W.3 could not have seen the occurrence. The learned Counsel would submit that P.Ws.1 and 2 are nothing but only an introduction. It is highly doubtful whether the FIR could have come into existence as put forth by the prosecution. The occurrence has taken place at about 1.00 p.m., but the FIR has come into existence at 5.15 p.m. The Head Constable has not only recorded the statement of P.W.1, but has also registered the case. Thus, in the instant case, the delay, that was caused, remained unexplained.

c) Even as per the witnesses, they were waiting in the place for a period of 1-1/2 hours. Thus, it would also indicate that their evidence cannot be believed, since there was no reason for them to cause delay for 1-1/2 hours. In the instant case, the lower court has not considered the evidence properly, but has erroneously believed the evidence. In the absence of any independent witness and that too in a public place, the case of the prosecution should have been doubted. The medical opinion was also not in favour of the prosecution. In the instant case, it was the accused, who filed the petition before the Jamath for living together and that, it would clearly indicate that he had no intention to commit the crime.

d) Even assuming that the prosecution was successful enough to prove the fact that it was the accused, who attacked P.W.1 and also the deceased at the time of occurrence and caused the death of the deceased, the act of the accused would not attract the penal provisions of murder. In the instant case, there are circumstances, indicating that for a period of 10 years, P.W.1 did not live with the accused, but she was living in her parental home. Further, it was the accused, who gave a petition before the Jamath at Ananjiyur that he wanted to live with P.W.1, but she did not agree. The petition was referred to the Kalimangalam Jamath and there also, it did not fructify. All would clearly indicate that it was P.W.1, who refused to live with the accused and thus, the accused got provoked. Even as per the evidence, the accused was telling her that are you my wife and so telling, he attacked her. When the deceased intervened, he attacked her also saying that you are responsible for all the things. Thus, it could be easily inferred that the deceased was the root cause for the entire strained relationship in the family affairs and it was passing in his mind and due to sustained provocation, he has acted so. Hence, the act of the accused would fall under one of the exceptions to Section 300 IPC. The act of the accused would be one culpable homicide not amounting to murder and it has got to be considered by this Court.

Heard the learned Additional Public Prosecutor on the above contentions.

The Court has well considered all the contentions narrated above.

It is not the fact in controversy that one Rasool Beevi, the aunt of P.Ws.1 and 2, following the incident that took place on 23.2.2003 at about 1.00 p.m., was taken to the Government Hospital, where she was declared dead. Following the inquest made by the Investigating Officer, the dead body of the deceased was subjected to post-mortem by P.W.4, the Doctor. He has issued Ex.P.4, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of external injury Nos. I and II and its corresponding internal injuries about 20-24 hours prior to post-mortem. From the post-mortem certificate, it would be quite clear that the deceased died out of the injury Nos. 1 and 2. Apart from that, the deceased died out of homicidal violence was never questioned by the appellant/accused at any stage of proceedings and hence, without any impediment, it could be factually found that the deceased died out of homicidal violence.

In order to substantiate the charges levelled against the appellant, the prosecution has marched three witnesses, out of three witnesses, two were eyewitnesses. Out of P.Ws.1 and 2, P.W.1 was an injured witness. Regarding the attempt made by the accused on P.W.1, the charge for the offence u/s 307 IPC has been framed. It is a well settled proposition of law that in a given case like this where the eyewitnesses happened to be an injured witness, unless strong circumstance or reason is noticed, the court should not ordinarily reject the evidence. In the instant case, the Court can well said that no circumstance is noticed. P.W.1 is the wife of the accused. They went over for conciliation proceedings before the Jamath at Kalimangalam and it did not fructify. P.W.1 accompanied by the deceased and also P.W.2, returned and when they reached the tank bund, the accused armed with aruval, attacked P.W.1 and when the deceased intervened, she was also attacked. The evidence of P.W.1, as eyewitness, has inspired the confidence of the Court. The medical opinion in respect of the injuries sustained has also been produced satisfactorily. Thus, in the absence of any circumstance, the Court is unable to see any reason as to why the evidence of P.W.1 could be suspected. The evidence of P.W.1, with all material particulars, was fully corroborated by the evidence of P.W.2. In the instant case, the deceased was the aunt of P.Ws.1 and 2. She also accompanied them for the purpose of conciliation proceedings at Kalimangalam Jamath. When they were returning, it was the accused, who attacked P.W.1 with aruval and when it was intervened by the deceased, she was also attacked by the accused twice on the head. She was taken to the hospital and was declared dead. The ocular testimony through P.Ws.1 and 2 was fully corroborated by the medical evidence. Yet another circumstance is the recovery of M.O.1 aruval pursuant to the confessional statement, which in the opinion of the court was the strong circumstance to indicate the nexus of the accused with the crime.

Now, the contentions of the learned Counsel for the appellant have got to be considered. The first contention is that there was a delay in registering the FIR. The occurrence has taken place at about 1.00 p.m., but the case was registered at 5.15 p.m. and that there was some delay. Now, it is pertinent to point out that the occurrence has taken place in a solitary place and there was nobody available, except these three persons. The accused also fled away from the place of occurrence. P.W.2 went over and informed the same to P.W.3 and he brought a car and thus, there was a delay of 1-1/2 hours. P.W.1 and the deceased were taken to the Government Hospital, Madurai, where the deceased was declared dead. P.W.1 was admitted in the hospital. An intimation was given to the outpost police station and in turn, the intimation was given to P.W.12, the Head Constable, who rushed to the hospital and recorded the statement of P.W.1 and thus, the delay has occasioned in the natural course of things. Thus Court is unable to see any delay, which is unreasonable or remained unexplained.

The second contention is that there was non examination of independent witnesses. It is not the case of the prosecution that any independent witness was present at the time of occurrence. The place of occurrence is only a tank bund and there was no material to indicate that there was any house situated there or any independent witness was present. According to the investigator, independent witnesses were not available and hence, the contention of the learned Counsel for the appellant as to the non examination of independent witnesses does not require for consideration.

The defence plea that it was P.W.2, who killed the deceased and this fact has been suppressed not only by P.W.2, but also P.W.1 cannot be countenanced for the simple reason that P.W.3 accompanied by P.Ws.1 and 2 and also the deceased, went to Kalimangalam Jamath for the purpose of conciliation. P.W.3 has clearly narrated the entire happenings. Thus, it would be quite clear that P.W.3 cannot be expected to suppress the happenings before the court of law. Under these circumstances, the defence plea that it was P.W.2, who has killed the deceased and P.W.1, has given a false version by way of the complaint, has got to be brushed aside. In the instant case, P.W.1 has given a clear evidence about the complicity of the assailant, namely the accused and hence, the contention has got to be brushed aside.

The prosecution, through ocular testimony, which was fully corroborated by the medical evidence and also through the recovery of M.O.1 aruval, pursuant to the confessional statement, has clearly proved that it was the accused, who attacked the deceased at the place of occurrence and caused her death and the accused has also attacked P.W.1 at the place of occurrence.

Coming to the second line of the argument that the act of the accused was due to sustained provocation, the Court is unable to agree with the learned Counsel for the appellant. In the instant case, it is true, both P.W.1 and the accused did not live happily. Their marriage took place before 10 years. P.W.1 went to her parental home. On number of occasions, there were request for reunion, but not acceded to. Finally, the matter reached the Jamath at Ananjiyur, where also it did not fructify. Then, the matter was referred to Kalimangalam Jamath. On the date of occurrence, they have appeared before the Jamath, but it did not fructify and they were advised to approach the court of law. Then, P.Ws.1,2 and the deceased were all returning through the tank bund and P.W.3 went through his cycle. When all were coming near the place of occurrence, the accused suddenly appeared with aruval and attacked P.W.1. When the deceased intervened and came to her rescue, she was also attacked by the accused. The theory put forth by the learned Counsel for the appellant that the accused had sustained provocation, which impelled him to act so cannot be countenanced for more reasons than one. Firstly, the occurrence has taken place in a tank bund, where no one was available and it is a solitary place. Secondly, the accused armed with aruval came there. Thirdly, the accused cannot have any provocation against the deceased. The Court is unable to notice any material and not even a suggestion and not even a statement was made by the accused at any point of time. The theory of sustained provocation as a defence has been put forth by the learned Counsel for the appellant before this forum only. In the absence of any material, it is highly difficult to accept and digest such contention, which has got to be stated only for the purpose of rejection.

The lower court has marshalled the evidence properly, considered the same and found the appellant guilty under Sections 302 and 324 IPC and awarded punishments as referred to above, which in the opinion of the court, both factually and legally correct. This Court is unable to see anything to disturb the judgment of the lower court and it has got to be sustained. Accordingly, it is sustained.

In the result, the criminal appeal must fail and fails. Accordingly, the criminal appeal is dismissed.

Mr.R.Anand, Amicus Curiae counsel is entitled to get remuneration from the Legal Aid, Madurai.