Durai @ Duraisamy vs The State

S.K. Krishnan, J.—This appeal has been preferred by the accused/appellant against the conviction and sentence passed in S.C. No. 57 of

1995 dated 14.2.1996 by the Principal Sessions Judge, Coimbatore.

The facts, leading to the filing of this appeal, in brief, are as follows:

a) Five years prior to the date of occurrence, both the appellant and the deceased Kanniyappan occupied Poramboke land of Noiyal river at

Karumarampalayam and they have been residing at the Northern side of the river.

b) The deceased Kannippan was working as a coolie under the appellant, a building contractor. Since the appellant was not prompt in making

payment of wages to the deceased and that there was a dispute between them, the deceased had chosen to work as a coolie under one Mari

Boyan.

c) Having got irritated by the attitude of the deceased, the appellant came to the house of the deceased on 12.2.1994 at about 11.00 p.m. and on

his shouting, the deceased came out of the house and there was some altercation between them. During such altercation, the appellant, took a knife

from his waist and stabbed the deceased on his chest and all over his body indiscriminately.

d) On seeing this gruesome attack, P.W.1 Kuppammal, wife of the deceased, and his daughter Chitra cried. On hearing the cry of P.W.1, P.W.2

Palanisamy, came to the scene of occurrence and witnessed the attack by the appellant on the deceased. P.W.3 Ramasamy, also came to the

scene of occurrence and saw the fleeing away of the appellant.

e) Thereafter, P.W.1 and P.W.2 took the deceased to the Government Hospital, Tirupur, where, he was admitted by P.W.6 Doctor, who issued

accident register Ex.P.6.

f) After admitting the deceased, P.W.1 went to Tirupur North Police Station and gave an oral complaint, which was reduced into writing by

P.W.10 Head Constable, who registered a case, on the basis of the complaint Ex.P.1, in Cr. No. 194 of 94 u/s 326 I.P.C. P.W.10 sent Ex.P.1

and the F.I.R. Ex.P.16 to the Judicial Magistrate No. I, Tirupur and also a copy of Ex.P.16 to P.W.11 Sub Inspector of Police.

g) P.W.11, who took up the investigation, on 13.2.1994 recorded the statement of the deceased and P.W.1 at the hospital and thereafter he

proceeded to the scene of occurrence and prepared observation mahazar Ex.P.2 and rough sketch Ex.P.18 in the presence of P.W.4 Sakthivel

and one Vijayabalan and also recovered bloodstained earth M.O.2 and sample earth M.O.3 under Ex.P.3 Mahazar.

h) Thereafter, around 11.00 a.m., P.W.11 arrested the accused and on the basis of his confession Ex.P.4, P.W.11 recovered the knife M.O.1

under the cover of Ex.P.5 Mahazar in the presence of P.W.5 Abibulla Sait and one Abu Baker.

i) During enquiry, P.W.11, found an injury on the forehead of the appellant and when he was asked about the injury, the appellant gave a counter

complaint, which was registered by P.W.11, in Cr. No. 217 of 1994 under Sections 341 and 323 I.P.C. and sent the appellant to the Government

Hospital Tirupur with a police memo for receiving first aid treatment from P.W.7 and after examination P.W.8 issued a wound certificate Ex.P.9.

The appellant was, thereafter, sent to judicial custody.

j) On 16.2.1994 at about 8.30 p.m., P.W.11 got the information from the Medical College and Hospital, Coimbatore, that the deceased

Kanniyappan died at 2.50 p.m., and therefore, he altered the case into one u/s. 302 I.P.C. and sent the Express F.I.R. Ex.P.21 to the Judicial

Magistrate No. I, Tirupur and thereafter, he sent the files to the Inspector of Police.

k) P.W.12 Inspector of Police took up further investigation. On 17.2.1994, at Coimbatore Medical College and Hospital in front of the

panchayatdars, he conducted inquest over the body of the deceased and prepared inquest report Ex.P.22. He then made further enquiry on the

witnesses P.W.1 to 3 and sent the body of the deceased for the post mortem examination with the requisition Ex.P.7. After examining the Doctors

P.W.6 and P.W.7 and observing all the formalities and on completion of the investigation, he filed a charge sheet u/s 302 I.P.C. before the Court

of Judicial Magistrate No. I, Tirupur.

l) Further, P.W.12, referred the counter case, given by the appellant, registered in Cr. No. 217 of 1994 as mistake of fact and sent the referred

report Ex.P.23 to the Court.

The prosecution, to prove the above case, examined 12 witnesses, filed 23 exhibits and marked 3 material objects before the trial Court.

When the Trial Court questioned the accused u/s 313(1)(b) Cr.P.C., the accused totally denied the case of the prosecution as false. No witness

was examined and no exhibit was filed on the side of the defence. But the appellant/accused filed a statement before the learned Sessions Judge,

stating that on the fateful day around 11.30 p.m., while he was returning to his home, since the deceased was making public nuisance in a drunken

state with an aruval and when the same was asked by the appellant, the deceased cut the appellant with the aruval and thereafter, he went to the

police station and gave a complaint, which was not registered and on the next day, the police obtained a signature under threat and he was sent to

the hospital. Further, he stated that since the persons who assembled there, attacked the deceased, he sustained injuries and that the prosecution

witnesses gave false evidence.

On the basis of the oral and documentary evidence, the Trial Court, convicted the accused/appellant u/s 302 I.P.C. and sentenced him to

undergo life imprisonment.

Aggrieved against the conviction and sentence passed by the learned Principal Sessions Judge, Coimbatore, the present appeal has been

preferred by the appellant.

We have heard the learned counsel appearing for the appellant and also the learned Additional Public Prosecutor .

The learned counsel appearing for the appellant would vehemently contend that the conviction and sentence passed by the learned Sessions

Judge, is not at all sustainable for the following reasons.

a. The motive stated by the prosecution is not at all established through the prosecution witnesses.

b. The circumstances shown by the prosecution case would reveal that following the quarrel between the accused and the deceased due to the

sudden provocation, the accused stabbed the deceased and not with the intention to cause the death of the deceased.

c. The eye witnesses P.W.2 and P.W.3, could not have seen the accused for the reason that the said occurrence had taken place in dark.

Therefore, the conviction on the appellant has to be set aside and the appellant is entitled for acquittal.

Per contra, the learned Additional Public Prosecutor would contend that the conviction and sentence passed by the learned Sessions Judge

warrants no interference of this Court for the reason that the prosecution case has been proved beyond reasonable doubt by the prosecution

witnesses.

Further, the learned Additional Public Prosecutor would submit that when P.W.1 and P.W.3 clearly established the motive for the occurrence

and P.W.1 and P.W.2 witnessed the occurrence and P.W.3 also witnessed the fleeing of the accused after committing the said offence from the

scene of occurrence and the evidence of P.W.1 and P.W.2 corroborated by the evidence of the doctors P.W.6 and P.W.7, it cannot be said that

the conviction and sentence is not sustainable.

The learned Additional Public Prosecutor would further contend that when the motive is established by the prosecution witnesses, there is no

question of sudden provocation and that too in the absence of any good reason for such sudden provocation, the contention of the learned counsel

for the appellant cannot be accepted and that the prosecution case is not suffering from any infirmity and therefore, the judgment of conviction

rendered by the trial Court has to be confirmed.

The learned Additional Public Prosecutor has also relied on the decision in JAGTAR SINGH AND ANOTHER VS. STATE OF

PUNJAB1999 SCC (Cri) 120, wherein the appellant inflicted gandasa blow on the head of the deceased and the deceased died after 16 days of

the incident and the doctor opined that the death was caused by septicemia which was due to head injury and the said injury was sufficient in the

ordinary course of nature to cause death and in the above circumstances, the Supreme Court held that the appellant was convicted rightly u/s 302

I.P.C.

It is an admitted fact that the appellant, the deceased, P.W.2 and P.W.3, all were residing on the bank of Noiyal river. It is also a fact that the

deceased was a coolie under the appellant.

It is stated that the appellant was not at all regular in payment of wages to the deceased. In such circumstances, whenever the deceased

demanded wages payable to him, there was a quarrel between the appellant and the deceased.

It is stated that six months prior to the occurrence, there was a quarrel between these two with regard to non payment of wages. Since the

deceased demanded wages payable to him on and off, the appellant got irritated and thereby there was enmity between them. This fact has been

referred to in Ex.P.1.

It is seen that the said enmity developed further when the deceased joined as a coolie with one Mari boyan. In the wake of development of

such enmity, the accused came to the house of the deceased on the fateful day around 11.30 p.m. stood outside the house and shouted against the

deceased.

On hearing the shouting of the accused, the deceased came out of the house and questioned him. Then, there was a wordy quarrel between

them and during that quarrel, the accused took out a knife from his waist and stabbed on the chest of the deceased and also stabbed all over his

body indiscriminately.

On seeing this murderous attack, P.W.1, wife of the deceased and her daughter cried. On hearing the cry of P.W.1, P.W.2 Palanisamy, who

is residing near to the house of the deceased came to the spot and witnessed the occurrence. The accused, after stabbing the deceased, ran away

from the scene with the weapon, which was witnessed by P.W.3, who is also residing near to the house of the deceased.

Now, in the light of the evidence of these witnesses and the materials placed by them, it is for us to see whether the contentions urged by the

learned counsel appearing for the appellant are tenable.

P.W.1 has deposed that three months prior to the date of occurrence, her husband attended the building work under the accused and there

was a dispute between the accused and her husband over the non- payment of wages at every week end and therefore, her husband joined with

another person and attended his job.

P.W.3 also has deposed that the deceased Kanniyappan had worked under the accused for some time and he himself stopped attending the

work, since the accused did not pay the wages promptly and thereafter, on compromise made by P.W.3 and others, again the deceased attended

the work under the accused and again there was no timely payment and therefore, there was dispute between the accused and the deceased

Kanniyappan and consequently, deceased left his job.

In the complaint Ex.P.1, the above fact has been referred to.

Further, in the statement given by the appellant under Ex.P.19, he himself admitted that following a wordy quarrel, there was enmity between

the appellant and the deceased.

The above evidence of P.W.1 the wife and P.W.3, who is a neighbour, and the complaint Ex.P.1 and also the statement of the appellant under

Ex.P.19 would prove clearly that there was enmity between the appellant and the deceased over the non payment of wages and thereby there was

a motive against the deceased and in such circumstances, the contention of the learned counsel that the motive was not established by the

prosecution witnesses cannot be accepted.

P.W.1 has deposed that on the day of occurrence at night, the accused came to her house and shouted at her husband asking him as to why he

did not come to the work and had gone to some other place for work, for which, her husband questioning the accused as why he was shouting for

this, and immediately ,thereafter, the accused took the knife from his waist and stabbed her husband on his right chest, on his face, hand, leg etc.

indiscriminately causing more than 20 injuries.

P.W.2, in his evidence, has stated that on the day of occurrence at about 11.p.m., on hearing the cry of P.W.1, P.W.2 came out of his house

with an hurricane lamp and went in front of the house of the deceased Kanniyappan and saw the accused sitting on the chest of the deceased and

stabbing him.

P.W.3 has deposed that on 12.2.1994 at about 11 p.m., on hearing the cry of P.W.1 and P.W.2 , P.W.3 and one Angappan, while reaching

the scene of occurrence saw that the accused was fleeing away from the scene and that the deceased Kanniyappan was lying on the ground with

stab injuries.

From the above evidence of P.W.1 to P.W.3, who are the eye witnesses, it is clear that there was no sudden provocation for the appellant for

causing not less than 20 stab injuries on all over the body with the knife indiscriminately.

When there was enmity between the deceased and the appellant and thereby, it was established that there was a motive and intention to kill the

deceased and the fact that the appellant caused injuries on the chest, face, leg and hand of the deceased, not less than twenty in numbers with

knife, the contention of the learned counsel appearing for the appellant that due to sudden provocation, the appellant stabbed the deceased, cannot

be accepted. Because, firstly, as contended by the learned Additional Public Prosecutor, when it is proved that there was enmity between the

deceased and the appellant and as such there was a motive against the deceased, there is no room for coming to the conclusion that the act done

by the appellant was only due to the sudden provocation. Secondly, the appellant had not left the occurrence place by causing a single stab on the

deceased and on the contrary he repeatedly inflicted several injuries on vital parts of the body.

The contention of sudden provocation can be accepted only when it is proved that there is no enmity and the act of the deceased led to sudden

provocation and thereby, the act done by the appellant, could be natural to the human being in using the weapon and attack. Only then, there is a

room for coming to the conclusion that the appellant might have committed the offence under sudden provocation, otherwise, as in the instant case,

this Court cannot come to the conclusion that the appellant committed the said offence under sudden provocation.

The learned counsel appearing for the appellant would contend that P.W.2 and P.W.3 could not have witnessed the occurrence, since the

alleged occurrence is said to have occurred at 11.30 p.m. and there was no street light, as per rough sketch Ex.P.18 and therefore, the evidence of

P.W.2 and P.W.3 are not reliable.

P.W.2 has deposed that the accused was stabbing the deceased Kanniyappan. P.W.3 has deposed that when he reached the scene of

occurrence, the accused was fleeing away from the spot. From the evidence of P.W.2 and P.W.3, it is clear that the appellant stabbed the

deceased. P.W.1 has already stated clearly that the appellant came to the house of the deceased and stabbed the deceased with knife.

As referred to above, the appellant, the deceased, P.W.2 and P.W.3 were residing in the same place, i.e. on the bank of Noiyal River. So,

there is no difficulty in identifying the appellant, who is not a stranger. Especially, for the village people even in the night times, it is not difficult to

identify the persons of the same village. Even assuming that there was no street light, when P.W.1 gave strong evidence with regard to motive and

the act of the deceased on the day of occurrence and the evidence of P.W.2 and P.W.3, who are not interested witnesses, corroborating the

evidence of P.W.1, we cannot accept the contention of the learned counsel appearing for the appellant, especially, when P.W.3, before deposing

with regard to identification of the accused, came out of the witness box and went near the accused in the Court Hall and identified him and then

deposed that he was the culprit.

Further, P.W.6 Doctor has deposed that on 13.2.1994 at about 1.30 a.m., P.W.1 brought her husband Kanniyappan for treatment. While

Kanniyappan, who was conscious, was examined, he told the doctor that he was stabbed by one known person with knife. P.W.6 found injuries

on right shoulder, left cheek, right chest, left leg and on the right nose not less than 19 injuries and issued Accident Register Ex.P.6.

The evidence of P.W.6 has corroborated the evidence of P.W.1 with regard to stab injuries and the places.

P.W.7 Post Mortem Doctor, conducted the post mortem examination on the body of the deceased Kanniyappan and opined that the

deceased would appear to have died of septic complications as a result of stab injury on the right of the chest associated with haemorrhage and

shock due to other stab injuries sustained by him.

P.W.7 Post Mortem Doctor''s evidence has also corroborated the evidence of P.W.1, who has stated that the appellant stabbed on the right

chest of the deceased and stabbed not less than 20 times on the body of the deceased.

Further, the recovery of knife M.O.1, bloodstained earth M.O.2 and sample earth M.O.3 and the preparation of observation mahazar Ex.P.2

and rough sketch Ex.P.19 in the presence of P.W.4 Sakthivel and one Vijayabalan, support the evidence of prosecution witnesses.

Before parting with, we want to say on the statement given by the appellant at the time of questioning u/s 313(1)(b) Cr.P.C. before the trial

Judge that the statement was solely a cooked up one, because, in the statement, it is stated that he denied the working of the deceased under him,

whereas, he accepted in the complaint given by the appellant, while he was arrested by P.W.11, that there was a dispute between the appellant

and the deceased. Further, in the statement, it is stated that the deceased cut the appellant with an Aruval, whereas in the Accident Register

Ex.P.9, it is stated under Nature of injury and treatment that ""Alleged to have been hit by Aruval at about 12 midnight on 12/13.2.1994 in his

house by unknown person. The above two reasons are enough to discard the statement of the appellant as a cooked up one and on the other

hand, it corroborates the case of the prosecution.

The evidence of prosecution witnesses and the materials placed before the Court and also the decision relied on by the Additional Public

Prosecutor fully satisfy the ingredients of Section 300 I.P.C. and thereby the accused is punishable u/s 302 I.P.C.

In the light of the discussions held above, we are not inclined to interfere with the judgment of the Court below, since the same would not suffer

from any infirmity, and thereby we confirm the same. The Trial Court is directed to secure the custody of the accused to undergo the remaining

period of sentence.

In result, the appeal is dismissed with the above direction.