Govindan Alias Govindaswamy vs State

N. Arumugham, J.—The accused is the appellant herein, who challenges the correctness and validity of the judgment of conviction and

sentence rendered against him by the learned Sessions Judge, Periyar District at Erode in Sessions Case No. 34 of 1987 dated 4th August, 1987,

finding him guilty for the offence u/s 302, I.P.C. and thereby convicting and sentencing him to undergo rigorous imprisonment for life.

One Karuppanna Nadar of Kathakofikadu near Arachalur was running a Toddy shop. Under the same place an illicit arrack shop was also

going on and the customers after having consumed toddy and arrack were used to be engaged in gambling in the same place every evening.

Following the time, on 10th August, 1986, the accused herein by name Govindan alias Govindaswamy and others had consumed toddy in the shop

of Karuppanna Nadar between 4:00-6:30 p.m. and that after finishing the business in both the toddy shop and arrack shop, they began to gamble

by playing cards with money. A few persons who participated in the said gambling, lost their entire money and that therefore they had left the

game. But however the said Karuppanna Nadar, the owner of the Toddy shop and the accused continued to gamble, with the result, the accused

had gained all the money completely and Karuppanna Nadar lost every one of his pain. It was at this juncture, by about 6:30 p.m. on that day,

when the accused tried to get away from the gambling, Karuppanna Nadar prevented him and insisted that the game should be continued for the

reason that he had lost his entire belongings, for which, the accused had restarted that the time had gone already and hence he started to go away.

As Karuppanna Nadar Insisted on the basis of his total loss in the gambling, the accused gave Rs. 50/- to him, and not being contented with that it

was claimed that he has paid some more money to him. Even so, the loser of the game was not satisfied and that therefore he pulled the Banian of

the accused. While doing so, the money and the currencies from the person of the accused fell down in toto. By taking the same, Karuppanna

Nadar put his toddy container in his cycle and was about to start. Infuriated at the activities of the Karuppanna Nadar by taking all the money of

the accused and starting to leave the place, the accused took a knife and stabbed him at about 7:00 p.m. in the same place upon his back and that

consequently when he fell down on his back, he stood upon his stomach and stabbed him upon the head, chest, umbilicus and hands

indiscriminately. P.W. 1 Chinnasamy a resident of the same place where the deceased was living, claims that he used to purchase arrack from the

main shop of Arachalur and sell it in the scene of Crime under the same place, that the deceased Karuppanna Nadar was running a toddy shop

and that about one year prior to the trial, on a Sunday, when he was selling arrack, the deceased Karuppanna Nadar was found selling his toddy

and that it was at that time one Arumugam, Srirangan, Muthusamy Gounder and the Accused had also came there and consumed the toddy and

that P.W. 1 and Karuppanna Nadar and the persons referred to above had played the gambling of cards for a period of about half an hour and

that thereafter P.Ws. 1 and 2, Srirangan and Arumugham had left the game and that the accused and the deceased were alone playing the game till

about 6:30 p.m. On that day and in that place there was a kerosene lamp burning and that thereafter, the accused started to go to his house. But

however the deceased prevented him by saying as to why he was leaving at that stage when he had lost every money and that therefore, the

accused gave Rs. 50/- to the deceased and however as he demanded further, some more money was given and that after having received the

same, he pulled the banian of the accused. Consequently ten rupees and five rupees denomination of the currencies and the coins fell down from

the custody of the accused and by taking the entire money of the accused when the deceased was about to leave that place, the accused

demanded the return of the same, for which it was refused and for the persistent demand made by the accused the deceased had said that he will

not return the same and that it was for the accused to do whatever he wants. He also claims that upon hearing the said words from the deceased,

the accused took the knife M.O. 1 from his underwear and stabbed the deceased upon his back when he was about to tie the toddy can on the

carrier of the cycle. When Karuppanna Nadar fell down on his back, P.W. 2 cried as to why the accused had down so, and the accused had

replied that whoever approaches him he would stab them. Therefore P.Ws. 1 and 2 did nothing except to watch. He further claimed that when

Karuppanna Nadar fell down on his back, the accused sat upon the stomach of the deceased and stabbed him on the chest, stomach, face and his

side phalanx and on other places indiscriminately and that thereafter he took the entire money from the person of Karuppanna Nadar and ran away

towards the road side with the knife in his hand. When P.Ws. 1 and 2 went near they found that Karuppanna Nadar had passed away. Thereafter,

every one had disbursed. Then P.W. 1 had been to Thalavumalai and then the eldest son of the deceased was informed at Ammapalayam and

along with him all the three came to the scene of crime at about 11:00 p.m. on that day and after some time P.W. 1 went to Arachalur Police

Station by 12:00 Mid-night on that day and gave a complaint to the Sub-Inspector of Police orally which was reduced into writing by the Sub-

Inspector of Police and read over to him and admitted by him and accordingly his thumb impression was obtained which was marked as Ex. P.1.

P.W. 2 also corroborated the above claim of P.W. 1 in toto. He also identified M.O. 2 series the Playing cards with which they were gambling

on that day.

P.W. 9 Nawab John, the Sub-Inspector of Police, Arachalur, had stated that at about 12.30 Mid-night P.W. 1 had appeared before him and

gave an oral statement which was reduced into writing to his narration on 11-8-1986 which was marked as Ex. P.1 and registered as Crime No.

244 of 1986 and prepared the printed First Information Report Ex. P.11 and both were sent to the Judicial Magistrate and the copies to the higher

officials and he had been to the scene of Crime by 1:30 A.M. on the same night. Following this witness, P.W. 10 came to the scene of occurrence

by about 7:00 A.M. in the next day.

P.W. 10 Palanisamy, Inspector of Police Kodumudi Police Station, on receipt of the information regarding the registration of the case by about

6:00 P.M. on 11-8-86, got the copy of the F.I.R., took up investigation and had been to the scene of Crime at about 7:00 A.M. and prepared an

observation Mahazar Ex. P.4 attested by P.W. 5 by name Saraswathi and another Poonusamy and he prepared a rough sketch Ex. P.12 regarding

the topography of the scene of Crime. He caused the scene of crime to be photographed through P.W. 7 and between 3:00 A.M. and 11:30 A.M.

he held the inquest over the dead body of Karuppanna Nadar in the presence of witnesses and prepared the inquest Report Ex. P.13 and at about

1:45 A.M. he had recovered from the scene of occurrence M.O. 2 and M.Os. 6 to 11 under the cover of Mahazar Ex. P.5, attested by P.W. 5

and another Ponnusamy.

P.W. 3 Doctor on receipt of the requisition sent through P.W. 4 P.C. attached to Arachalur Police Station at about 1:05 A.M. on 11-8-1986

with the dead body, conducted the autopsy over the same and found the following external injuries.

An incised wound on the left parietal region extending upto the occipital region ""6 x ""1 x 1"".

An incised wound 2"" x 1"" x 1 1/2"" over the left-scapular region.

An incised wound 6"" x 1"" x 1"" over the left side face.

An incised wound 2"" x 1"" x 1 1/2"" over the left side neck.

3 incised wounds each 1"" x 1/2"" x 1/4"" over the left dorsum of hand.

An incised wound 3"" x 1"" x 3"" over the left arm anterior aspect.

An incised wound 4"" x 1"" x 3"" above the previous wound.

An incised wound 1"" x 1/2"" x 1/2"" over the left shoulder.

3 incised wounds each 1"" x 1/2"" x 1/2"" over the left axilla.

4 incised wounds cutting all the muscles of right arm of different sizes.

2 incised wounds each 1 1/2"" x 1"" x 1"" over the right axilla.

10 incised wounds of different sizes over the anterior wall of the chest. Fingers can be inserted into the Thorax through the wounds.

Omentum was protruding through lower most left side wound.

INTERNAL INJURIES :

Heart : 150 grms. Chambers empty, 4 incised wounds of different sizes over the heart. Pericardium filled with 200 cc of blood.

Lungs : Right 450 grams left 400 grams. pale. A punctured wound seen over the left lung. Multiple punctured wounds over the right lung.

Liver : 1200 grams. pale. Four punctured wounds seen.

Spleen : pale 100 grams.

Kidneys : Both 100 grams. pale.

He was of the opinion that the deceased would appear to have died of shock and haemorrhage due to multiple stab injuries 18-20 hours prior to

autopsy and would further opine that the injuries found upon the persons of the deceased are adequate enough to cause instantaneous death. Ex.

P.3 is the post-mortem certificate received by the Doctor. P.W. 1 Police Constable by name Kandasamy recovered M.O. 3 Dhothi, M.O. 4

underwear and M.O. 5 Waist Cord from the dead body, after the autopsy and handed over the same in the Police Station.

P.W. 10 claims that when he was on duty in the Police Station by about 3:30 p.m. on 12-8-1996, P.W. 6 Muthusamy produced the accused

before him and from him M.O. 1 knife and 12 to 15, under Mahazar Ex. P.6 were recovered from him, attested by witnesses and sent to the

Court on the same day including the accused for Judicial custody. P.W. 8 Head Clerk of the judicial Second Class Magistrate, Erode has stated

that on receipt of Ex. P.7 from P.W. 10. He packed all the material objects sent in this case and under the covering letter addressed by learned

Judicial Magistrate with the copy of the same under Ex. P.8 sent them to chemical examination and received the Chemical Examination Report Ex.

P.9 and the Serological Report Ex. P.10. P.W. 6 by name Muthusamy also a resident of the same place claimed that when he was returning from

weaving by about 8:00 p.m. on the day of occurrence he heard that Karuppanna Nadar was murdered and he had been to the scene of Crime and

that two days thereafter when he came to the branch road of Chennamalai he saw the accused coming from North and stated that the accused had

told him that he wanted the help to go the the Police Station. Accordingly, he took the accused in his cycle and handed over him in the Police

Station, where P.W. 10 the Inspector of Police was there and after his examination, M.Os. 1 and 12 to 15 all blood stained articles, were

recovered. After completing the investigation, by examining all the witnesses. P.W. 10 Inspector of Police had laid final report against the accused

in Court on 30-9-86 for the offence u/s 302, I.P.C.

The accused had denied his complicity and involvement in the crime totally when he was questioned and examined u/s 313(1)(b) of the Criminal

Procedure Code by the learned Trial Magistrate with regard to the incriminating portion of the evidence and materials made available against him

and stated that a false case has been foisted against him. But however he did not examine any witness on his behalf.

After recording oral evidence from P.Ws. 1 to 10 and the documentary evidence Exs. P.1 to P.13 with the marking of M.Os. 1 to 21 by and on

behalf of the prosecution in the context of the specific defence of total denial taken by the accused and after having an elaborate discussion, learned

Trial Judge has concluded that prosecution had established the guilt of the accused beyond all reasonable doubt and that therefore found the

accused guilty for the offence u/s 302, I.P.C. and consequently convicted and sentenced to undergo the rigorous imprisonment for life by rendering

the impugned judgment and this judgment is being challenged in this appeal.

We have heard the Bar for the appellant assailing the impugned judgment for want of its correctness and inappropriate appreciation of the

adduced evidence and the consequent awarding of the quantum of sentence and the contra from learned Government Advocate justifying the

impugned judgment.

The only contention raised by Mr. Jagadeesan, Learned counsel appearing for the appellant is that even assuming the occurrence alleged by

the prosecution through its witnesses is true for a moment, then the learned trial Judge had ignored the fact that it was the resultant out-come of the

provocation caused to the accused by the deceased through insisting to return his lost money in the gambling and then pulled the accused by tearing

his banian, with the result, the entire money he won in the gambling has fallen down and the deceased after taking all the money, tried to go away

by refusing to return the same, which alone, prompted the accused to do away and cause such injuries upon him.

The other circumstances, viz., the scene of crime in which the occurrence had taken place and the occurrence was preceded by the gambling

of the accused and the deceased along with others and that others had left the game for the reason that they had lost every one of their belongings

and that the accused and the deceased were continuing the gambling and that the deceased also lost every one of his money the accused and

consequently the deceased was insisting the accused to return money, for which, the accused has returned a sum of Rs. 50/- and the further

insistence made him to pay some more money and that having not satisfied with it, the deceased pulled the banian of the accused which resulted in

the entire belongings and property of the accused fell down and by taking all the deceased tried to depart from the scene of crime by taking the

cycle and by stubbornly refusing to return any money to the accused was not at all in controversy or in dispute in the instant case by either of the

parties. The accused, it seems, had denied of all his overt acts. The overt acts particularly claimed by the prosecution is on being excited by the

activities of the deceased, the accused took M.O. 1 the knife from concealment and gave a stab on the back of the deceased which made him to

fell down and which overt act was preceded by saying that he would not allow him to go with all his belongings. This was followed by the accused

jumping upon the stomach of the deceased who fell to the ground on his back and stabbed with the same knife indiscriminately upon the chest,

stomach, hands and so on. As evidence from the post-mortem certificate Ex. P.3 and the evidence of the Doctor who did autopsy it was found

that there are as many as 23 injuries upon the person of the deceased. From the above materials made available before us, it can be seen that even

assuming that the deceased had taken all the belongings and the money of the accused by force or otherwise, then, we can accept for a moment

that the accused is entitled to get back his properties and to defend himself. But however, he has not done so. What he did according to the

prosecution, he took the lethal weapon and stabbed him on the back of the deceased which made him fell to the ground on his back. It appears,

the accused gave the stab with the words that he would not leave him to go without stabbing. Therefore, his intention was very clear. It is

presumable that he had exercised his right of private defence and did the overt act in order to or with a view to get back his money and belongings

from the deceased.

It is also noticed that immediately after the deceased fell down to the ground on his back, it was the consistent claim of the prosecution through

P.Ws. 1 and 2 that the accused sat upon the stomach of the deceased and stabbed him indiscriminately upon his chest, abdomen, hands and the

side phalanx which resulted in as many as 23 injuries which according to the Doctor would cause instantaneous death and that therefore the

evidence of the Doctor renders all corroboration to the claim of P.Ws. 1 and 2. Even assuming for a moment that the right of private defence is

available for the accused, it has been clearly and substantially spelt out by the prosecution through the ocular witnesses that the accused seems to

have exceeded far away from exercising his private defence. Furthermore, we are at every difficulty to accept either the theory of exercising the

right of private defence by the accused or provocation of any kind for the accused for the simple reason that the ocular witnesses consistently claim

that before doing the overt act, the accused had proclaimed that he would not allow the deceased to leave the place with his money and that

therefore he gave the stab upon his back which brought the deceased to the ground to fall upon his back followed by the accused sitting upon

stomach of the deceased and giving indiscriminate stabbing on almost all vital parts of the human anatomy of the deceased, which resulted in his

instantaneous death. It is thus seen that the very overt acts of the accused cannot at all be taken to fall either within the concept of the provocation

or the exercising of the right of private defence. His intention was very clear to do away with the deceased and that can be inferred from the

number and nature of the various injuries found upon the person of the deceased.

The ocular testimony of P.Ws. 1 and 2 supported by medical evidence and the straight forward investigation done in this case, though with a

small allowance of some delay has been alleged by and on behalf of the prosecution by the defence, we are constrained to say that the prosecution

in the instant case had succeeded in the mission of establishing the complicity and the total involvement of the appellant, in causing the death of the

deceased and that therefore the learned Trial Judge had rightly and justifiably with the adequate reasonings given therefore accepted the case of the

prosecution and convicted the accused for the charges framed and tried and that therefore the present appeal preferred by the accused has to be

dismissed as having no merits at all.

For the reasoning we are unable to accept the defence theory projected by Mr. Jagadeesan, learned counsel for the appellant as it deserves

outright rejection.

In the result, for all the foregoing reasonings, we hold that the appeal fails and accordingly it is dismissed. Consequently the judgment of

conviction and sentence rendered against the accused in Sessions case No. 34 of 1987 by the learned Sessions Judge at Erode dated 4th August,

1987 is hereby confirmed and maintained. The bail bond executed by him or on his behalf is hereby ordered to be cancelled forthwith.

Appeal dismissed.