Boopathi vs State by Inspector of Police

M. Chockalingam, J.—Challenge is made to the judgment of the Principal Sessions Division, Virudhunagar District dated 13.2.2008 made

in S.C. No. 19 of 2007 wherein the sole accused/appellant stood charged for the offences under Sections 302 and 506 (2) IPC and on trial, he

was found guilty of charge of murder and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default to undergo one

year simple imprisonment, and the appellant was acquitted of the charge u/s 506(2) IPC.,.

The short facts that are necessary for the disposal of this appeal can be stated as follows:

(i) PW.1 is the father and PW.2 is the brother of the deceased. PW.1 was living with all his family members. The house of one Periyasamy was

situated behind the house of PW.1. Drainage water from the house of PW.1 shall be taken through the vacant site of the said Periyasamy, in

respect of which, there was a long standing quarrel between the family of PW.1 and Periyasamy. One Guruvammal was the tenant of PW.1.

(ii) On 23.8.2006 in the morning hours, Guruvammal was removing drainage water, which was passing through the site of Periyasamy. There arose

a quarrel between the deceased and accused/appellant and the deceased gave an assurance that he would lay a pipe in order to remove the

drainage water. However, the accused/appellant made a vow that he would finish off the deceased. On the very day at about 8.00 p.m., the

accused/appellant came with an aruval and attempted on the life of the deceased. PW.2 and others pacified him. On the next morning at about

7.00 a.m., on 24.8.2006, PW.1, PW.2 and PW.3 went to attend nature''s call. At that time, the deceased also came. There the accused/appellant

appeared with MO.5 and attacked the deceased on his buttock. The deceased who fell down, woke up and tried to escape but the accused

chased him and attacked him on different parts of the body. PW.1 and PW.2 attempted to rescue but the accused threatened them. As a result of

the injuries sustained, the deceased died on the spot. The accused run away from the place of occurrence.

(iii) PW.1 accompanied with PW.2 went to the respondent police station. The Sub-Inspector of Police, PW.17 was on duty at about 8.30 a.m.,

when PW.1 gave Ex.P.1 complaint and on the basis of which, a case came to be registered in Crime No. 517/2006 u/s 302 IPC. Ex.P.16 F.I.R

was despatched to the Court and to the higher officials.

(iv) On receipt of a copy of the F.I.R., on 24.8.2006 at about 9.00 a.m., PW.19, the Inspector of Police, attached to the respondent police

station, took up investigation and proceeded to the spot and made an inspection and prepared an Observation Mahazar Ex.P.9 and a Rough

Sketch Ex.P.18. He conducted inquest on the dead body of the deceased in the presence of panchayatdars and prepared an inquest report

Ex.P.19 in their presence. Then, the dead body was sent for the purpose of autopsy.

(v) PW.12 Doctor, attached to the Government Hospital, Rajapalayam, conducted autopsy on the body of the deceased and issued post-mortem

Certificate Ex.P.4 wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries.

(vi) Pending investigation, the investigating officer arrested the accused/appellant on 28.8.2006 at about 7.45 hours when he voluntarily came

forward to give a confessional statement in the presence of witnesses and the admissible part of the same was marked as Ex.P.11. Pursuant to the

confession, the accused produced MO.5 Aruval, which was recovered under the cover of mahazar Ex.P.12. MO.3 shirt and MO.4 Lungi were

recovered from the accused/appellant. Then, the accused was sent for judicial remand.

(vii) All the material objects recovered from the accused and also weapon of the crime were subjected to chemical analysis, which resulted in two

reports viz., Chemical Analysis Report Ex.P.6 and Serological Report Ex.P.7.

(viii) On completion of the investigation, the investigating officer filed a final report. The case was committed to the Court of Sessions. Necessary

charges were framed against the accused.

In order to substantiate the charges levelled against the accused, the prosecution examined 20 witnesses and relied on 21 Exhibits and 12 MOs.

On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 Cr.P.C. on the incriminating circumstances

found in the evidence of the prosecution witnesses, which was denied on the part of the accused. No defence witness was examined. The trial

Court after hearing the arguments advanced by either side and on considering the materials available on record, took the view that the prosecution

has proved its case beyond reasonable doubts in respect of the charge of murder and found the accused guilty of the charge of murder. However,

the trial Judge acquitted the accused u/s 506 (2)IPC.

Advancing arguments on behalf of the accused/appellant, the learned Counsel appearing for the appellant would submit that in the instant case,

the prosecution came with a story that the accused/appellant attacked the deceased on 24.8.2006 in the morning hours and PW.1 and PW.2 were

examined as eye-witnesses, who are close relatives of the deceased, and there was a long pending quarrel in the removal of drainage water and in

the said circumstances, they had a grudge and hence, they came forward to give false evidence against the accused/appellant and the learned

Counsel pointing to the evidence would submit that there was a lot of discrepancies on the material particulars and therefore, coupled with the

relationship of the witnesses to the deceased, the evidence should have been rejected by the trial Court but the trial Court has miserably failed to

do so. Apart from that the evidence of these witnesses was never corroborated by the medical evidence. The alleged recovery of MO.5 was

nothing but an introduction for the purpose of strengthening the prosecution case but in vain. The learned Counsel would submit that the

prosecution has miserably failed to prove its case beyond reasonable doubts.

The learned Counsel for the appellant would add that even as per the narration of the prosecution case on the previous night, there was a

quarrel in which the deceased had used filthy language not only against the accused/appellant but also his family members, in particular his sister.

Even after his sister was pacified, she was weeping on the utterance and the same was actually lingering in his mind and being provoked by the

same, he had committed the act of murder in the dawn of the next day. In the circumstances, it would be clearly indicative of the fact that there was

no intention to commit the crime of murder. In the circumstances, the act of the accused/appellant would only amount to culpable homicide not

amounting to murder. This legal aspect has got to be considered by the Court.

Heard learned Additional Public Prosecutor appearing for the State on the above contentions.

The court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made

and also scrutinised the materials available.

It is not in controversy that one Rajesh Kannan was done to death in the incident at about 7.30 a.m., on 24.8.2006 at the place as put-forth by

the prosecution. The dead body was subjected to post-mortem by PW.12. He gave Post-Mortem Certificate Ex.P.4 wherein he has opined that

the deceased would appear to have died of shock and haemorrhage due to multiple injuries. The fact of the death as put-forth by the prosecution

was never disputed before the trial Court or before this Court and hence, there is no impediment for the Court in recording so.

In order to substantiate that it was the accused who attacked the deceased with MO.5 Aruval and caused instantaneous death, the prosecution

examined PW.1 and PW.2 as eye-witnesses and they are closely related to the deceased. It is well settled that merely because of the relationship

of the witnesses to the deceased, the evidence cannot be rejected but before acceptance of such evidence, it must be subjected to careful scrutiny.

Even after the application of the test, the Court is satisfied that their evidence has got to be accepted as their evidence inspires the confidence of

the Court. Hence, the trial Judge was perfectly correct in accepting their evidence. The evidence of these witnesses was to the effect that there was

quarrel on the previous day in which the deceased uttered filthy language not only against the accused but against his family members and there was

exchange of words and they were pacified. In the next morning, PW.1 and PW.2 went to attend nature''s call. The accused came with the aruval

and attacked the deceased and caused his death. Despite the cross examination in full, the evidence of these witnesses remain unshaken. That

apart, the ocular testimony of PW.1 and PW.2 stood fully corroborated by the medical evidence.

Yet another circumstance which is strong against the accused/appellant was the recovery of MO.5, Aruval. When he was arrested, the same

was recovered by the Investigating Officer in the presence of the witnesses and the recovery of the weapon Mo.5 Aruval pursuant to the

confessional statement given by the accused would be pointing to the nexus of the crime of the accused. In short, it can be stated that the

prosecution evidence is pointing to the guilt of the accused. Now the contention put-forth by the learned Counsel for the appellant in the face of

such evidence in the Court cannot be countenanced.

Insofar as the second line of argument is concerned, the Court is able to see force in the contention of the learned Counsel for the appellant. It

is not in controversy that drainage water of PW.1 was to pass through the house of Periyasamy and that there was a long standing quarrel between

him and the deceased and on the previous day to the occurrence when the tenant of PW.1 was removing and passing drainage water through the

sites of Periyasamy, there arose a quarrel and there was exchange of words between the deceased and the appellant. The occurrence had taken

place at about 8.00 p.m.,. At that juncture, the deceased had not only spoken ill of the accused appellant but also his family members and also

touched the morality of the accused/appellant. Therefore, all these were actually disturbing and perpetrating the accused/appellant and in the next

morning, the incident had taken place. Thus, it is quite clear that it was due to provocation, which was made by the deceased and that too the

words which was spoken in filthy language against the accused/appellant and against his family members and also in particular, his sister, which was

actually lingering in his mind. Under the circumstances, the act of the accused cannot be termed as murder but culpable homicide not amounting to

murder. Hence, the act of the accused would fall u/s 304 (Part - I) IPC and awarding seven years of rigorous imprisonment would meet the ends

of justice.

Accordingly, the judgment of the trial Court is modified and the conviction of the accused/appellant u/s 302 IPC is modified into one u/s 304

(Part I) IPC and the sentence of life imprisonment is substituted by seven years rigorous imprisonment. The imprisonment already undergone by the

accused/appellant is ordered to be given set off. The Criminal Appeal is disposed of accordingly.