Balamurugan @ Bala @ Rajiv Gandhi vs State

M. Chockalingam, J.—This appeal is brought forth by the 1st accused in S.C. No. 242/2009 on the file of Additional Sessions Division, Fast Track Court No. II, Madurai, dated 19.03.2010, whereby, he, along with two others ranked as accused Nos. 2 and 3, stood charged under Sections 120B, 341 and 302 IPC and on trial, along with other accused, found guilty under Sections 341 and 302 IPC, convicted thereunder and sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for six months for the charge u/s 302 IPC and no separate punishment was imposed for the charge u/s 341 IPC. However, the trial court acquitted all the accused from the charge u/s 120-B IPC. No appeal was preferred by accused Nos. 2 and 3.

Short facts, sans unnecessary particulars, necessary for the disposal of the appeal can be stated as follows:

(a) P.W.1 Ambikai Ramesh is the brother of one Ambikananthan, the deceased in this case. Accused Nos. 1 to 3 were already known to the family of P.W.1. Five months prior to the occurrence, one Kesavan put a flex board of a film star at the corner of the road leading to Ayyar Bungalow from Moondru Mavadi and the persons belonged to the said Kesavan group confronted with accused No. 1 alleging that he had torn the said flex board and on 14.02.2009, the said Kesavan beat accused No. 1 as he only tore the flex board. Accused No. 1, who was having good contact with the deceased Ambikananthan, met the brother of the deceased on 15.02.2009 at about 9.00 p.m. and requested him to make his brother, the deceased, to intervene and enquire the matter and when accused No. 1 was taken to the deceased, the deceased found fault only with accused No. 1 and beat him in the presence of others and the accused No. 1 left the place in angry mood.

(b) On 16.02.2009 at about 5.30 p.m., P.W.1 was in his house talking with his mother and friends and at that time, P.W.5, Ramarajan, working as Watchman in Sourashtra Choultry, situate at Moondrumavadi, came in a nervous mood and informed that all the three accused persons were quarrelling with his brother, the deceased Ambikananthan. Immediately P.W.1, along with P.W.5, rushed to the choultry in his two wheeler and reached there at about 5.45 p.m. and saw the accused persons quarrelling with the deceased Ambikananthan and P.W.1 requested the appellant/accused No. 1 not to do anything and any dispute could be settled by making a talk. But, accused No. 1, not heeding to the words of P.W.1, took a knife and stabbed Ambikananthan on different parts of his body and Ambikananthan fell down and when he attempted to get up, all the three accused restrained him and immediately accused No. 2 stabbed him with a knife and accused No. 3 also stabbed the deceased. When P.W.1 and others who were there raised alarm, all the accused ran away from the place of occurrence. P.W.1 and others went inside the Choultry, took the severely injured Ambikananthan in an auto to the Government Rajaji Hospital, Madurai, where P.W.12, the duty doctor, examined the injured and found him brought dead. P.W.12 sent the dead body to mortuary and gave intimation to the police.

(c) P.W.18, the Inspector of Police, on receipt of intimation from the hospital at 6.45 p.m. through wireless proceeded to the hospital and received Namuna 842/O.P./2009 and as there were none to give a complaint, he returned to the Station and when he was in the station, at about 9.30 p.m., P.W.1 appeared before him and gave Ex.P-1 Complaint, on the strength of which P.w.18 registered a case in Crime No. 126/2009 under Sections 341 and 302 IPC and despatched Ex.P-13, the printed FIR, to the Court. He took up the investigation, proceeded to the place of occurrence, made an observation in the presence of P.W.6 and another and prepared Ex.P-2, the Observation Mahazar and also prepared Ex.P-14, the rough sketch. He recovered M.O.4 -bloodstained earth and M.O.5 - sample earth from the place of occurrence under Ex.P-3 Mahazar, attested by P.W.6 and another. On 17.02.2009, P.W.18, the Inspector of Police, conducted inquest on the body of the deceased in the presence of panchayatdars an witnesses and prepared Ex.P-15, the inquest report. He gave a requisition to the Hospital for conducting autopsy on the body of the deceased. Thereafter, he examined witnesses and recorded their statements.

(d) One Dr. Meyyazhagan, the doctor attached to Government Medical College Hospital, conducted autopsy on the body of the deceased at 11.00 a.m. Ex.P-12 is the postmortem certificate issued by him, wherein it is opined that the deceased would have died of shock and haemorrhage due to the injuries sustained by him, 12 to 18 hours prior to autopsy. After postmortem, P.W.15, the Head Constable, recovered M. Os.2, 3 and 11 - personal wearing apparels of the deceased and handed them over to the Inspector of Police.

(e) Pending investigation, at about 5.30 a.m. on 18.02.2009, P.W.18, the Inspector of Police, arrested accused Nos. 2 and 3 in the presence of P. Ws.7 and 8 and when enquired, they came forward to give separate voluntary confessional statements and they were recorded by P.W.18. Ex.P-4 is the admissible part of the confessional statement given by accused No. 2, pursuant to which he took and produced one of the three knives marked as M.O.1 series, M.O.6 - bloodstained pant and M.O.7 - T. shirt and the same were recovered under Ex.P-5 Mahazar attested by the same witnesses. Likewise, pursuant to the admissible part of the confessional statement given by accused No. 3, which is marked as Ex.P-16, accused No. 3 took and produced one of the knives marked as M.O.1 series, M.O.12 - bloodstained jeans pant and M.O.13 -Shirt and the same were recovered under Ex.P-17 Mahazar attested by the same witnesses. Thereafter, accused Nos. 2 and 3 were sent for judicial custody.

(f) Based on the statements of witnesses, P.W.18, the Inspector of Police, recovered M.O.8 - Hero Honda Motor Cycle bearing Regn No. TN-58C 2742, M.O.9 - bloodstained T. Shirt, M.O.10 - bloodstained pant and one of the knives marked as M.O.1 series, all belonged to accused No. 1, from P.W.9 under Ex.P-9 Mahazar attested by P.W.10 and another. He sent all the material objects to the Court under Form 95. He examined the witnesses and recorded their statements. As P.W.18 got transfer, his successor P.W.19, the Inspector of Police, continued further investigation. As accused No. 1 surrendered before the Court, P.W.19 took him into police custody on 19.03.2009 as per the order of the Judicial Magistrate, marked as Ex.P-18 and when enquired, accused No. 1 gave a voluntary confessional statement and the same was recorded. Thereafter, accused No. 1 was surrendered before the Court and remanded to judicial custody. He gave a requisition to the Court for sending the material objects for chemical analysis and accordingly they were sent to Forensic Lab, which resulted in two reports, namely Ex.P-19, the Chemical Analysis Report and Ex.P-20, the Serology Report. He examined the witnesses and recorded their statements. On completion of investigation, P.W.19, the Inspector of Police, filed final report against all the accused persons under Sections 341 and 302 IPC on 10.06.2009.

After committal proceedings, the case was taken on file by the Sessions Court in S.C. No. 242/2009 and necessary charges were framed. To prove the charges against the accused, the prosecution examined 19 witnesses as P. Ws.1 to 19 and marked 20 documents as Exs.P-1 to P-20 and produced M. Os.1 to 13. On completion of the evidence on the side of the prosecution, when the accused were questioned u/s 313 of the Criminal Procedure Code about the incriminating circumstances found in the evidence of prosecution witnesses, they flatly denied all of them as false. On the side of defence, neither oral evidence nor documentary evidence was let in. The trial court, after hearing the parties, took the view that the prosecution has proved the charges under Sections 341 and 302 IPC against appellant/accused No. 1 as well as accused Nos. 2 and 3 beyond reasonable doubt, found them guilty, convicted them thereunder and awarded punishments as referred to above. However, the trial court recorded an order of acquittal in respect of the charge u/s 120-B IPC. Hence this appeal has been brought forth by accused No. 1.

Advancing arguments on behalf of the appellant/accused No. 1, the learned Counsel Mr. K. Jegannathan would make the following submissions.

(a) In the instant case, the prosecution has miserably failed to prove its case. It is true that the prosecution has examined P. Ws.1 to 5 as eye-witnesses to the occurrence, out of whom P.W.4 has turned hostile. P.W.5 has categorically admitted that the deceased Ambikanathan came to the choultry at 1.00 p.m. on the date of occurrence and at about 5.00 p.m. all the accused came to the choultry and at that time all the three accused on one side and the deceased Ambikananthan on the other side were quarrelling with each other but the occurrence has taken place at 5.45 p.m. and thus from the evidence of P.W.5 it could be quite evident that such a quarrel could not have continued for a long time and this would be clearly indicative of the fact that the evidence of P.W.5 is nothing but a false evidence and P.W.5 could not have informed P. Ws.1 to 3 and they could not have gone to the scene of occurrence because their residence is situated one furlong away from the place of occurrence and thus the evidence of P. Ws.1 to 3 also should have been rejected by the trial court for the simple reason that their evidence is not only inconsistent with each other but also self contradictory. Added further the counsel, the evidence of ocular testimony was never corroborated by the medical evidence.

(b) Further, the arrest of accused Nos. 2 and 3 and recovery of M.O.1 Series knives from them pursuant to the confessional statement alleged to have been given by the accused is nothing but a cooked up story and the documents prepared therefore were all fabricated one to suit the prosecution case. Therefore, learned Counsel would submit that all would go to show that the prosecution has not proved its case beyond reasonable doubt, as law would warrant and hence the appellant/accused No. 1 is entitled for an order of acquittal.

(c) Added further in the second line of his argument, learned Counsel would submit that even as per the case of the prosecution, all the three accused and the deceased Ambikananthan were continuously quarrelling with each other over the fixing of a flex board of a film star and subsequently it was also torn and even on the previous day there was a quarrel between the appellant/accused No. 1 and the deceased and in the public place, in the presence of others, it was the deceased who attacked the appellant/accused No. 1 and caused shame to him and even according to P.W.5, the watchman, accused persons and the deceased were quarrelling with each other and he informed the same to P.W.1 and P.W.1 and his relatives and friends came to the place of occurrence and even P.W.1 to 3 have deposed that at the time when they came to the place of occurrence all of them have been quarrelling and thus only due to quarrel and due to provocation, which was lingering in the mind of the appellant that he was attacked by the deceased in the presence of so many and caused shame to him, the appellant acted so and hence the act of the appellant would not attract the penal provision of murder and it is only culpable homicide not amounting to murder and this legal aspect has got to be considered by the Court.

The Court heard the learned Additional Public Prosecutor on all the submissions made by the learned Counsel for the appellant/accused No. 1 and paid its anxious consideration to the submissions made on either side and also perused the materials available on record.

It is not in controversy that one Ambikananthan was killed in an incident that had taken place on the evening hours on 16.02.2009. Following the registration of the case and preparation of inquest report after inquest by P.W.18, the Inspector of Police, the dead body was subjected to postmortem by one Dr. Meyyalagan, the postmortem doctor, and the doctor has categorically opined through the contents of Ex.P-12, the Postmortem Certificate, that the deceased died out of shock an haemorrhage due to the cumulative effect of all the injuries. P.W.17, the doctor examined to speak about the postmortem conducted by Dr. Meyyalagan and Ex.P-12, the postmortem certificate issued by him, has, after going through the medical records, has spoken about the cause of death of the deceased. The fact that the deceased died out of homicidal violence was never disputed by the appellant either before the trial court or before this Court and hence there is no impediment in recording so.

In order to substantiate its case that it was the appellant/accused No. 1 and other two accused attacked the deceased Ambikananthan with knives and caused his death, the prosecution had the advantage of examining five witnesses out of whom, fortunate for the prosecution, four have supported its case. According to P.W.5, he was working as watchman in the choultry and on seeing the quarrel between the accused persons and the deceased, he went to the house of P.W.1 and informed him about the quarrel and thereafter came to the choultry along with P.W.1 and his relatives and saw the quarrelling continuing even then and P.W.1 made an appeal to the appellant/accused No. 1 not to do anything and despite the same accused No. 1 attacked the deceased first and when he fell down, all the three accused restrained him and there after accused Nos. 2 and 3 also attacked the deceased with knives and caused his death. The evidence of P. Ws.1 to 3 is also in the same lines of P.W.5 and thus it is quite clear that P. Ws.1 to 3 and 5 have spoken in one voice that all the three accused persons have attacked the deceased one after another and caused, as a result of which the deceased died on the way to hospital. This ocular testimony of P. Ws.1 to 3 and 5 stood fully corroborated by the medical evidence.

Apart from that, the case of the prosecution put-forth by the prosecution as to the arrest of the accused and recovery that there was confessional statements made by the accused and pursuant to which they produced M.O.1 series knives and they were recovered from them was proved by examination recovery witnesses. All would clearly go to show that the prosecution has brought home the guilt of the appellant/accused No. 1, along with two other accused, has caused the death of Ambikanantham at the time and the place as put-forth by the prosecution.

Insofar as the second line of contention raised by the learned Counsel for the appellant is concerned, the Court is able to see force in the said contention. Even as per the prosecution, five months prior to the occurrence there was a quarrel between the appellant/accused No. 1 and the persons belonging to one Kesavan over fixing of a flex board of a film star and its removal and two days prior to the occurrence, the appellant/accused No. 1 was beaten by the said Kesavan and one day prior to the occurrence it was the deceased who attacked appellant/accused No. 1 in the presence of others in a public place and thereafter on the date of occurrence, in the evening hours, they were quarrelling with each other and it was seen by P.W.5, the watchman of the choultry, and even as per the evidence of P.W.5, he went to the house of P.W.1 and informed him and brought P.W.1 to the place of occurrence and P.W.1 has also stated that when he reached the place of occurrence he saw the quarrel between the accused persons and the deceased and thus the quarrel was going on for a long time.P. Ws.2 and 3 have also deposed about the quarrel between the appellant/accused No. 1 and the deceased. Thus it is quite clear that in that in a heat of passion the appellant/accused No. 1 has attacked the deceased and also the previous incident where he was attacked by the deceased in the presence of so many was also lingering in his mind and therefore the act of the accused/appellant No. 1 was neither intentional nor premeditated and the same would fall under Exception No. 4 to Section 300 IPC. Under such circumstances, the Court is of the opinion that the act of the appellant/accused No. 1 would attract the penal provision of Section 304(i) IPC and awarding a punishment of seven years R.I. would meets the ends of justice. Accordingly the judgment of the trial court is modified.

In the result, the conviction of the appellant/accused No. 1 u/s 302 IPC and the sentence of life imprisonment imposed thereunder are set aside and instead he is convicted u/s 304(i) IPC and sentenced to undergo seven years rigorous imprisonment. The fine amount imposed by the trial court is directed to be treated as one imposed u/s 304(i) IPC. The conviction of the appellant u/s 341 IPC is confirmed. The period of sentence already undergone by him shall be given set-off u/s 428 Code of Criminal Procedure. The appeal is accordingly disposed of.