Diwana @ Settu vs State

M. Chockalingam, J.—The sole accused in a case of murder, wherein he was found guilty u/s 304(ii), 323 I.P.C. and 25(1)(a) of Indian

Arms Act and sentenced to undergo R.I. for five years u/s 304(ii) I.P.C. and three months S.I. u/s 323 I.P.C. and six months R.I. u/s 25(1)(a) of

Indian Arms Act has brought forth this appeal.

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

a) The accused, the deceased and the injured belonged to Narikuravar community. On 17.10.2000 at about 3.00 p.m., they along with others

assembled to attend the funeral ceremonies of one Echakattan in front of his house at their colony. The wife of the accused, namely P.W. 4, Sudha,

as per the customary practice, began to dance. The same was objected to by the accused, since he felt that it was not a decent one. P.W. 2,

Babu, the father of P.W. 4 questioned the accused, which resulted in a wordy quarrel between them. The accused assaulted P.W. 2 and kicked

him. Further, the accused proceeded to his house situated nearby, came with a country gun and fired at P.W. 2 saying the following words: nla;

ghg[ cd;id , e;j Jg;ghf;fpahy; Rl;L bfhiy bra;jhy;jhd; vdf;F epk;kjp.

P.W. 2 made his attempt to escape. At that point of time, the gunshot hit upon one Manohari, the deceased, who was standing just behind P.W. 2

and she fell down unconsciously. The accused fled away from the scene of occurrence with the weapon.

b) P.W. 1, Ponnaiyan, the son of the deceased and his father immediately took her to Government Hospital, Porur for treatment. P.W. 10 Dr.

Jeyaprakash medically examined her and treated her. A copy of the Accident Register is marked as Ex.P. 10. In Ex.P. 10 he has clearly stated

that he has noticed multiple pellet injuries over the left side of chest and left side of abdomen with a size of "" x "" cm. Subsequently, she was taken to

Government Pentland Hospital, Vellore for further treatment. P.W. 11 Dr. Naresh Babu attached to the said hospital admitted her as inpatient in

the hospital.

c) P.W. 14, Sekar, Sub Inspector of Police, Kalambur on receipt of a phone message from P.W. 1 at about 9.00 p.m. on 17.10.2000 rushed to

the Government Pentland Hospital, Vellore. He could not record the statement from the victim, since she was unconscious. He recorded the

statement from P.W. 1, which was marked as Ex.P. 1. On the strength of the same, he registered a case at Kalambur Police Station in Crime No.

227/2000 under Sections 307, 323, 286 I.P.C. r/w 25(1)(a) of Indian Arms Act at about 2.30 a.m. on 18.10.2000. Ex.P. 20, the express F.I.R.

was despatched to the concerned Judicial Magistrate Court, while the copies were sent to higher officials. P.W. 15, Gopal, Inspector of Police,

Arni Town on receipt of F.I.R. took up investigation, proceeded to the site of occurrence, made an inspection and prepared Ex.P. 6 Observation

mahazar in the presence of two witnesses and Ex.P. 21 rough sketch. He examined the witnesses and recorded their statements.

d) P.W. 5. Balasubramanian, V.A.O of Kasthambadi Village along with his village assistant came to Kalambur Police Station and produced the

accused before P.W. 15 at about 9.00 a.m. on 18.10.2000. P.W. 5 also handed over to P.W. 15 the confessional statement Ex.P. 2 given by the

accused and recorded by P.W. 5. The accused was arrested by the Investigating Officer. The appellant/accused volunteered to give a confessional

statement before the Investigating Officer in the presence of P.W. 5 and his assistant. The admissible portion of the confessional statement was

marked as Ex.P. 3. Pursuant to the confessional statement, the accused took the Investigating Officer and the witnesses and produced the country

made gun, namely M.O. 1 from the bushes. The same was recovered under a mahazar Ex.P. 4 at about 10.30 a.m. in the presence of the same

witnesses. The accused also took them to his house and produced a bag with three zips, namely, M.O. 2, M.O. 3, Tarpaulin bag, M.O. 4, a small

ever silver tiffen box with black coloured explosive powder, M.O. 5, the head portions of ever silver spoons-2 in number, M.O. 6, an iron rod in a

small bag, M.O. 7, Aluminium box with pellets, M.O. 8, glass bottle with pellets and M.O. 9, coconut fibre threads. The said M.O. 2 to M.O. 9

were recovered under mahazar Ex.P. 5 in the presence of the same witnesses. The accused was sent to the court for remand. The seized materials

were also despatched to the concerned court.

e) On 18.10.2000, P.W. 15 proceeded to Government Pentland Hospital, Vellore and received the death intimation. P.W. 15 converted the case

into one for Section 302 I.P.C. and the altered F.I.R. under Ex.P. 7 was sent to Court. The Investigating Officer conducted inquest in the presence

of Panchayatars and witnesses and prepared report under Ex.P. 23. On requisition from the Investigating Officer through P.W. 8, Sethurathinam,

Head constable, P.W. 12, Dr. Vasanthi Chandran conducted autopsy on the dead body on 19.10.2000 at about 2.00 p.m. P.W. 12 found the

following external and internal injuries:

Body of well built female lies supine. No bony injuries. Hyoid intact. About 150-200 circular tattoo spots about � mm in drain over left side of

chest and left side of upper abdomen. Base blackened. Surrounding skin congested. Underlying sub coetaneous tissue ecchymosed. All internal

visceral pale in section. Blood stained fluid in peritoneal cavity. Multiple haemorrhagic circular spots over wall of stomach. Gun shot pellets

removed from stomach walls. 10 circular haemorrhagic spots over small intestine. Gun shot pellets removed from intestinal wall. Other viscera

normal in position and size.

The post-mortem certificate was marked as Ex.P. 14. P.W. 12 has opined that the deceased would appear to have died of shock and

haemorrhage due to injury to stomach and intestine due to gun shot wounds 15-25 hours prior to post-mortem.

f) On requisition by the Investigating Officer under Exs.P. 15 and P.16, the concerned Judicial Magistrate Court sent all the material objects along

with a covering letters Exs.P. 17 and P.18 to the Assistant Director of Ballistics, Forensic Science Department, Chennai-4. P.W. 16, Ramaiya, the

Expert, after examination of the said items and materials, has given a report under Ex.P. 12. P.W. 15 received the sanction order, Ex.P. 24 from

the District Collector for prosecuting the accused under the Indian Arms Act. On completion of the investigation, The Investigating Officer filed a

charge sheet on 19.1.2001 against the accused.

In order to prove the charges levelled against the accused, the prosecution examined 16 witnesses and marked 24 exhibits and 10 M.Os. The

accused was questioned u/s 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he

flatly denied as false. No defence witnesses were examined. After hearing the rival submissions and scrutiny of the materials available, the trial

court found the accused guilty under Sections 304(II), 323 I.P.C. and 25(1)(a) of Indian Arms Act and sentenced to undergo imprisonment as

stated supra.

Advancing his arguments for the appellant, the learned counsel inter-alia made following submissions:

Even as per the prosecution case, there was a wordy quarrel between the accused and P.W. 2 at the time of occurrence, which resulted in

commotion. Some of the witnesses, who were examined by the prosecution to prove the guilt of the accused, were close relatives. No independent

witnesses were available at that time and no one was examined. There was an inordinate delay in lodging a complaint, which would cast a strong

doubt in the prosecution case. Even assuming that the facts of the prosecution were proved, the act of the accused was due to sudden provocation

which was neither intentional nor premeditated. It is further contended that if the Court finds that the accused/appellant is entitled for acquittal in

view of the discrepant evidence adduced by prosecution and comes to a conclusion that the prosecution has not proved its case, the punishment

awarded by the trial court, which was excessive, has got to be reduced.

In answering to the above contentions of the appellant''s side, the learned Government Advocate would urge that the prosecution has proved its

case beyond reasonable doubt. The prosecution has examined P.W. 1, who was not only the eyewitness to the occurrence, but was the son of the

deceased; that it is pertinent to point out that P.W. 2, who is the father-in-law of the accused, has also sustained injury at the time of occurrence of

the act committed by the accused; that P.W. 4 is none else the wife of the accused; that apart from the said evidence, the prosecution has marched

P.W. 3, who has also spoken about the occurrence; that the medical evidence was thoroughly corroborated the ocular evidence adduced through

P.Ws. 1 to 4; that added to the above evidence, the prosecution has also relied on the recovery of the weapon, namely, M.O. 1, country made

gun pursuant to the confessional statement given by the accused; that the said fact has also been proved through the evidence of P.W. 5, V.A.O.;

that under the stated circumstances, it would be futile on the part of the appellant''s side to state that the case has not been proved; that the

prosecution has clearly proved the case beyond all reasonable doubt; that the lower court was perfectly correct in finding the accused guilty under

Sections 304(II), 323 I.P.C. and Section 25(1)(a) of Indian Arms Act and hence, the judgment of the trial court has got to be affirmed.

After careful consideration of the rival submissions and close scrutiny of the materials available, the Court is unable to agree with all or any one

of the contentions put forth by the appellant''s side. On the date of occurrence, namely, 17.10.2000 at about 3.00 p.m., the accused, his wife P.W.

4, his father-in-law P.W. 2, P.W. 1 and P.W. 3 and others assembled to attend the funeral ceremony of one Echakattan of their community at their

colony. From the evidence, it would be clear that when P.W. 4 began to dance as per the customary practice, the same was objected to by the

accused. This objection was questioned by P.W. 2, the father of P.W. 4. Enraged over the same, the accused kicked his father-in-law. Not

satisfied with the same, he went to his house, took M.O. 1 country made gun and shot at him. But, in his attempt to escape, P.W. 2 bent his body

and the deceased, who stood behind P.W. 2, sustained pellet injury. The deceased Manohari was taken to hospital where she was treated by

P.W. 10 Doctor and accident register has been given in that regard. For further treatment, she was taken to Government Pentland Hospital,

Vellore where she was treated by P.W. 11. It is not in dispute that the deceased Manohari, who sustained injury, succumbed, when she was under

treatment.

On receipt of requisition by the Investigating Officer, P.W. 12 Doctor conducted Autopsy on the dead body of Manohari and has given post-

mortem certificate, which was marked as Ex.P. 14, wherein the injuries were narrated as stated above. Hence, it is quite evident that the said

Manohari died only due to pellet injury caused by the accused. Apart from that minor injuries were caused to P.W. 2 at the time of occurrence. In

the instant case, the prosecution has examined not only P.W. 1, an eyewitness and P.W. 3, but also P.W. 2, the father-in-law and P.W. 4, the wife

of the appellant. A careful scrutiny of the evidence of the above witnesses and in particular P.Ws. 2 and 4 would clearly reveal that they have given

cogent, acceptable and convincing reasons. The appellant is unable to show any reason or circumstance why the father-in-law and the wife of the

accused should come to court of law to depose against the accused, and hence, this Court has to give necessary importance and significance to

their evidence.

As rightly pointed out by the learned Government Advocate, the medical evidence adduced through Doctors and their certificates has

thoroughly corroborated the ocular evidence. Apart from the above, the prosecution has relied on the recovery of M.O. 1, country made gun,

which was used by the accused at the time of alleged occurrence and the same was recovered pursuant to the confessional statement given by the

accused. The evidence of P.W. 5, V.A.O. in that regard is intact despite cross examination. In view of the above evidence, without any hesitation

it has got to be held that due to sudden provocation, the accused attempted at the life of P.W. 2 and by his act he has caused the death of the

deceased Manohari. It is a fit case where the concept of transfer of malice u/s 301 I.P.C. has got to be applied strictly. Hence, the lower court

was perfectly correct in coming to a conclusion that this case would fall u/s 304(II) I.P.C. and not u/s 302 I.P.C. and there was evidence for

Section 323 I.P.C. and Section 25(1)(a) of Indian Arms Act. Hence, this Court without any hesitation has to affirm the judgment of the trial court

as to the conviction rendered.

Coming to the question of sentence, the trial court has awarded 5 years R.I. u/s 304(II). The occurrence has taken place due to sudden

provocation. Taking into consideration the facts and circumstances of the case, this Court is of the considered view that awarding punishment of 4

years R.I. u/s 304(II) I.P.C would meet the ends of justice. Accordingly, the sentence imposed by the trial court on the appellant u/s 304(II) I.P.C.

is reduced to four years. In other respect, the judgment of the lower court is confirmed. With the above modification, this criminal appeal is

dismissed.