D. Dallasbar vs State

M. Chockalingam, J.—The sole accused in a case of murder, on being found guilty u/s 302 IPC by the Court of Session, Kanyakumari Division at Nagercoil in S.C. No. 178 of 2002 and awarded with life imprisonment along with a fine of Rs. 2000/-, in default to undergo two years rigorous imprisonment, has challenged the same in this appeal.

The brief facts necessary, sans unnecessary facts, for the disposal of the appeal can be stated thus:

(a) P.W.1 Mariathangam is the mother of the deceased Ujin Rani and P.W.2 Vijayarani is her elder sister. Accused Dallasbar is the husband of the deceased. Their marriage took place six years prior to the occurrence and they were living together in a house situate within a short distance of the house of P.Ws.1 and 2. P.W.1 is a fish vendor by carrying fishes to village parts and thus she was maintaining the family.

(b) On 30.07.2001 at about 2.30 p.m., P.W.1 was returning to house after vending and at that time the deceased asked her that she require fish for cooking, for which P.W.1 informed her that she would bring it in a short while and on hearing this, the deceased went home. P.W.1 informed the request made by the deceased to her another daughter, namely P.W.2, for which she informed that instead of taking raw fish, they could take cooked fish and thus P.Ws.1 and 2 took the cooked fish and went to the house of the deceased. When they reached the house of the deceased, they found both the accused and the deceased quarrelling and in that quarrel the accused, with his right hand, first fisted on the chest and right flank of the deceased and thereafter kicked on her lower abdomen with right leg and when P.Ws.1 and 2 intervened, the accused shouted and asked them to go out of the house. Immediately when the deceased fell down, the accused fled away from the scene of occurrence.

(c) The occurrence took place at about 3.00 p.m. Thereafter, in the car driven by P.W.4, P.Ws.1 and 2 took the deceased to the hospital, where P.W.6, the doctor, after examination, declared her dead. Immediately, P.Ws.1 and 2 brought back the body of the deceased to their house and thereafter with a written complaint, P.W.1, along with the village president, proceeded to the respondent police station where she gave her written complaint, marked as Ex.P-1, to P.W.8, the Sub-Inspector of Police at 5.45 p.m. Based on Ex.P-1, P.W.8 registered a case in Crime No. 495/2001 u/s 302 IPC and prepared Ex.P-7, the first information report and despatched the same to the Court through a constable and the copies of FIR were sent to higher police officials.

(d) P.W.10, the Inspector of Police, took up the investigation, proceeded to the spot, made an inspection in the presence of witnesses and prepared Ex.P-2, the observation mahazar and also drew Ex.P-11, the rough sketch. Then, through P.W.9, the photographer, P.W.10 took photographs of the body. Ex.P-8 series are the photographs and Ex.P-9 are their negatives and Ex.P-10 is the receipt given by the photographer. Thereafter, P.W.10 conducted inquest over the dead body in the presence of witnesses and panchayatdars and prepared Ex.P-12, the inquest report. He enquired P.Ws.1 to 3 and some other witnesses and recorded their statements. Following the inquest, the dead body was subjected to postmortem by P.W.7, the doctor attached to Kuzhithurai Government Hospital. Ex.P-3 is the requisition for postmortem and Ex.P-4 is the postmortem certificate issued by P.W.7, wherein she has opined that the deceased would have died of shock and haemorrhage due to the injury to spleen. P.W.10, the Inspector of Police, recovered M.Os.1 to 7, the belongings and the personal wearing apparels of the deceased, collected from the dead body under Form 95.

(e) Pending investigation, P.W.10, arrested the accused on 31.07.2001, at about 7.00 a.m., in the presence of P.W.5 and another and when enquired, the accused volunteered to give a confessional statement and the same was recorded by P.W.10 and thereafter he was subjected to judicial remand. P.W.10, the Inspector of Police, gave two requisitions, namely Exs.P-13 and 14 to the court subject the viscera and hyoid bone of the deceased to chemical examination and the same were sent to the Forensic Department through Exs.P-15 and 16, the letters of the Court, which resulted in receipt of Ex.P-5, the Chemical Examiner''s Report in respect of Visera and Ex.P-6, the Hyoid Bone Report. On completion of the investigation, P.W.10, the investigator, filed the final report before the concerned Magistrate Court.

The case was committed to the Court of Session and necessary charge was framed. To substantiate the charge levelled against the accused, the prosecution marched 10 witnesses as P.Ws.1 to 10 and relied on 16 documents marked as Exs.P-1 to P-16 as well seven material objects marked as M.Os.1 to 7. On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused denied them flatly as false. No defence witness was examined. The trial court heard the arguments advanced on either side, scrutinised the materials available and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty u/s 302 IPC, convicted him thereunder and sentenced him to undergo life imprisonment, which is the subject matter of challenge before this Court.

Advancing his arguments, Mr. K. Vamanan, learned Counsel for the appellant, would submit that the entire prosecution case rested on the evidence of P.Ws.1 and 2, who are the mother and the sister of the deceased, respectively and thus they are interested witnesses and therefore their evidence, if scrutinised with care and caution, should be rejected because there are lot of discrepancies on the material evidence and further, the medical opinion did not support the case of prosecution and hence the trial court should have rejected the case of the prosecution outright. Advancing his further arguments, the learned Counsel would submit that even assuming that it was the accused, who, by his act of fisting and kicking, has caused the death of his wife, the act of the accused would not attract the penal provision of murder because, even as per the evidence of P.Ws.1 and 2, when they reached the house of the deceased they witnessed a quarrel between the husband and the wife at the time of occurrence and following the same the accused has acted and further, in the instant case, it is not the case of the prosecution that the accused attacked his wife with any weapon, but he only fisted and kicked the deceased and thus there could not be any intention for him to cause the death of his wife and, under the above circumstances, the act of the accused will not attract the penal provision of murder and this has got to be considered by this Court.

The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions.

The Court paid its anxious consideration to the submissions made on either side and also made a thorough and careful scrutiny of the available materials.

It is not the fact in controversy that following the incident that took place at about 3.00 p.m. on 30.07.2001, the deceased Ujin Rani was taken to the hospital where, on examination, she was declared dead by P.W.6, the doctor and thereafter, following an inquest by the investigator, the body of the deceased was subjected to postmortem by P.W.7, the postmortem doctor and according to the medical opinion given by her in Ex.P-4, the postmortem certificate, the deceased died of shock and haemorrhage due to injury to spleen and it was due to fisting and kicking. Thus, the prosecution has proved that the deceased died out of the direct consequence of the act of fisting and kicking and therefore it has got to recorded that deceased died due to homicidal violence and accordingly done so.

In order to substantiate its case that it was the accused who fisted and kicked the deceased, the prosecution examined two witnesses, namely P.Ws.1 and 2, who are the mother and sister of the deceased, respectively and merely because of their relationship with the deceased, their evidence cannot be discarded but, the test of careful scrutiny has to be applied before accepting or rejecting their evidence. Despite the exercise of the test of careful scrutiny, their evidence stood the test. The lower court has marshalled their evidence properly and accepted it as convincing, since it inspired the confidence of the Court. From their evidence, it would be quite evident that inside the house they found the accused actually fisting with his right hand on the chest of the deceased and kicking with his right leg on the lower abdomen of the deceased and when she was immediately taken to the hospital, on examination she was declared dead. The medical opinion adduced through P.W.7, the postmortem doctor and Ex.P-4, the postmortem certificate, stood in full corroboration to the ocular testimony of P.Ws.1 and 2. Thus the prosecution has proved that part of the case that it was the accused who fisted and kicked the deceased and because of the direct consequence of the attack she died.

Coming to the question of the nature of the act of the accused, the Court is of the considered opinion, in the instant case, the act of the accused would not attract the penal provision of murder. As rightly argued by the learned Counsel for the appellant, at the time occurrence, there was a quarrel inside the house between the husband and the wife, namely the accused and the deceased, as put-forth by the eye-witnesses P.Ws.1 and 2 and following the said quarrel, the accused has first fisted on the chest of the deceased and thereafter kicked on her lower abdomen. Further, as rightly pointed out by the learned Counsel for the appellant, the accused has not used any weapon in attacking his wife and this would be indicative of the fact that the accused did not have any intention to cause the death of her wife and only due to the sudden quarrel and provocation, without any pre-meditation, he has attacked his wife with hand and leg. Under the stated circumstances, it cannot be said that the act of the accused would attract the penal provision of murder u/s 302 IPC, but it would amount to only culpable homicide not amounting to murder. At the same time, the medical evidence adduced would be indicative of the fact that the accused acted forcibly while he kicked his wife on her lower abdomen which caused injury to spleen, which was the direct consequence of her death. Therefore, the Court is of the considered opinion, the act of the accused would attract the penal provision of Section 304(i) IPC and awarding a punishment of seven years rigorous imprisonment would meet the ends of justice.

Accordingly, the conviction of the appellant/accused u/s 302 IPC is modified into one u/s 304(i) IPC and he is sentenced to undergo seven years rigorous imprisonment thereunder instead of life sentence awarded u/s 302 IPC. The sentence already undergone by the appellant/accused shall be given set off.

With the above modification in the conviction and sentence, the appeal fails and the same is dismissed.