Kaliamurthy vs State

N. Dhinakar, J.—The accused in Sessions Case No. 193 of 1989 on the file of the Principal Sessions Judge, Trichy, is the appellant, who challenges the conviction and the sentence of imprisonment for life imposed upon him for an offence of murder u/s 302 IPC in this appeal.

The appellant was tried before the learned Sessions Judge on two charges: Charge No. 1 was u/s 302 IPC on an allegation that at about 5.00 a.m. on 12.9.1988, he cut Govindaraj, the deceased in the case, with an ''aruval'', M.0.3, as a result of which the said Govindaraj died and the second charge framed against him before the trial court was u/s 307 IPC on an allegation mat during the course of the same transaction, he cut P.W.6, a neighbour of the deceased, with the same weapon, M.O.3, and attempted to murder him.

The learned Sessions Judge convicted the appellant, who hereinafter will be referred to as the accused in this judgment for the sake of convenience, on both the charges. He was sentenced to undergo imprisonment for life on the first charge while he was sentenced to suffer rigorous imprisonment for a period of four years under Charge No. 2.

To prove its case, the prosecution has examined P.Ws. 1 to 20 and marked Ex.P-1 to Ex.P-17 as well as MOs. 1 to 13.

The case of the prosecution shorn of unnecessary details can be briefly summarised as follows:

The accused during the relevant period was residing at Pandagapadi Village. He fell in love with one Saroja, a daughter of P.W. 10, and both eloped. A panchayat was convened in respect of that incident and P.Ws. 1 and 6 were two of the panchayatdars at the panchayat. The accused was questioned and he was asked to bring the girl back and hand her over to her father, P.W. 10. The accused promised to return the girl on a condition that if something happens to the girl, Saroja, he must not be taken to task and wanted a "muchalicka" to be written and accordingly, Ex.P-5 was written in which P.W.9 also affixed his signature. The girl, Saroja was thereafter brought by the accused and left in the custody of her father, P.W. 10. Even though the girl was left in the custody of her father, P.W. 10, the accused visited the house of P.W. 10 and pulled her hands which were seen by P.W. 10 and when questioned, P.W. 10 was beaten. P.W. 10 lodged a complaint with the village elders about the conduct of the accused. P.W.6 and the deceased advised P.W.10 to take away the girl from the village so that the accused will not get an opportunity to meet the girl and accordingly. P.W.10 took away the girl from the village inspite the trouble created by the accused and his party who stood in front of the bus and prevented it from moving. This was two days prior to the incident.

While the matter stood thus, on 12.9.1998 P.W.6 was in his cattle-shed feeding the cattle and at about 5.00 a.m., he saw the deceased, Govindaraj, coming from east chased by the accused. While the deceased was running, he was shouting

(What I have done for you to do this to me?). P.W.6 came out of the cattle shed and saw the accused cutting the deceased with M.O.3. After cutting the deceased, the accused went towards P.W.6 and saying that P.W.6 also will not be spared, cut him with the same aruval and P.W.6 avoided the cut resulting in injuries on both of his hands. Before the accused attempted to cut for the second time. P.W.6 pushed him down and M.O.3 an ''aruval" which was in the possession of the accused, also fell down. P.W.6 then took that aruval and gave two cuts to the accused. The occurrence was witnessed by P.Ws.3. 4 and 5. P.W.8, who also came on hearing the cries of his father-in-law, P.W.6, saw the accused cutting P.W.6. P.W.7 also saw the accused running from the scene of occurrence and P.W.6 told P.Ws.7 and 8 that he was cut by the accused.

On being informed by P.W.5, P.W.2, an assistant working in the office of P.W. 1 went to the house of P.W.1, the Village Administrative Officer of Pandagampatti village, at 6.00 a.m. and informed him about the occurrence. P.W.1 accompanied by P.W.2 thereafter proceeded to the scene of occurrence and found Govindaraj lying dead with injuries. P.W. 1 prepared a report, Ex.P. 1 and sent it through P.W.2 to Arumbavoor Police Station and a copy of the said report was also sent to the Tahsildar.

P.W.2 took the report, Ex.P.1 and handed over the same at the police station at Arumbavoor to P.W. 18 the Sub-Inspector of Police, at 11.00 a.m. On the basis of Ex.P-1, a case in crime No. 153/1988 was registered by P.W. 18 under Ex.P.10, the printed First Information Report, against the accused for offences u/s 302, 307 and 324 IPC. The express reports were despatched to the officials as well as to the court.

In the meanwhile, P.W.6, who sustained injuries was removed to Perambalur Government Hospital by his broodier ,Rathinasamy, where P.W. 11, the Duty Doctor, examined him at 9.40 a.m. and found the following injuries:

Incised wound 6 cms � 0.5 cms � skin deep at left parietal region above and behind left ear - Bleeding present.

Incised wound 2 cms � 0.5 cm � 0.5 cm at the back of right hand. Extensor particles, longer tendon is cut. Fresh bleeding present.

Incised wound across left palm and right finger 8 cms � 0.5 cm � 1 cm fresh bleeding present.

P.W.6 was admitted into the hospital. Ex.P-6 is the wound certificate and the doctor was of the opinion that injury No. 2 found on the person of P.W.6 is grievous in nature.

On receipt of the express report, P.W. 19, the Inspector of Police (Crimes) of Mangalamedu Circle took up investigation in the crime and reached the scene of occurrence by 12.10 p.m. where he prepared an Observation Mahazar, Ex.P-2. He also drew a rough sketch, Ex.P-16, and from the scene of occurrence, he seized M.Os. 1 and 2 under mahazar Ex.P-3. P.W. 19 conducted inquest over the dead body of Govindaraj between 12.30 a.m. and 2.30 a.m. in the presence of panchayatdars and prepared Ex.P-17, the inquest report. During the inquest, he examined PWs. 1, 2, 3, 4, 7, 8, 9 and 10, and others. After the inquest was over, he sent the dead body with his requisition, Ex.P-7 for conducting autopsy over the dead body.

On receipt of the dead body and the requisition, P.W.12, Assistant Civil Surgeon attached to the Perambalur Government Hospital, conducted autopsy on the dead body of Govindaraj and found the following ante-mortem injuries:

An ante-mortem incised wound over the right parietal region posterior aspect a lightly obliquely placed touching the right occipital region 10 cms � 2.5 cms � bone depth which is visible. The lower end of the wound is tapering.

An ante-mortem incised wound over the right ear bone in the middle extending to the middle of the neck 15 cms � 4.5 cms deep internal structures, muscles, vessels cut sternomastoid cut and thus, the wound enter into.

A deep ante-mortem incised wound extending from the midline to the right side of the neck upto the back encircling the entire right side of the neck exposing pieces of bones of maxilla and mandible portion of right mesenteries cut portion of right side of plastisma cut sternomastoid right cut. Right anterior and posterior digastrics muscles cut. Right Styloplate injuries was cut right submandibular salivary gland cut, right facial artery cut. Right IX, X, XI, XII nerve cut. Right internal carotid, external carotid were cut. Right internal jugula vein cut. Thyroid cartilage, cricoid cartilages at traver pastage exposed. Hyoid bone right carnea not seen. A portion of Thyroid gland is cut corresponding to trachil cut, oesophagus about rings 2 to 6 to rings of tracha inside the incised wound the base of tongue visible and muscles of glotlies genno glaouses. Style glaouses, Ayo glaouses the entire head was just hanging the support of the left side of neck, tissues, muscles and back support teeth 6/8, 8/4 right 2 molar upper missing left lower 4 missing mouth eyes closed.

An ante-mortem incised wound over the upper part right deltoid muscles prominiced slightly obliquely placed 7.5 cms � 2.5 cms � 4 cms.

An ante-mortem incised wound at the right supra seapular region almost horizontally placed extending from the right supra scapular region in the middle to the upper end of the right deltoid prominiced when the lower end of the wound is tapering for a distance of 7 cms over the right arm outer aspect 12.5 cms � 4.5 cms � bone deep supra archnoid is muscles cuts exposing the right supra scapular .region upper portion.

An ante-mortem punctured wound seen in the left side of the chest and below the lateral part of left clavical closed to the armpit 5 cms � 5 cms x 5 cms. The middle of right (sic) is covered in the region. Right shoulder, right upper to the middle of right fore-arm is covered with clotted blood including the right side of occipital and pareital region of the scalp.

P.W. 12 was of the opinion that the deceased died on account of shock and haemorrhage due to the injuries found on the head and the neck. He issued Ex.P-8, the postmortem certificate.

P.W.19 continued the investigation and seized M.Os.3, 4 and 5 produced by P.W.8 under mahazar Ex.P.4 and then proceeded to the Perambalur Government Hospital where he examined P.W.6, the injured eye-witness. He searched for the accused, but the accused was absconding. He examined other witnesses in the case on various dates and also made arrangements to effect the arrest of the accused. The material objects seized were sent with a requisition, Ex.P-12, to the court to forward them for chemical analysis. Ex.P. 14 is the report of the chemical analyst and Ex.P-15 is that of the serologist.

Further investigation was handed over to P.W.20, the successor in office. P.W.20 took up the investigation and questioned some of the witnesses as well as the doctor, P.W. 11 and also the doctor, P.W. 13, who examined the accused for the injuries found on his person. Ex.P-9 issued by P.W. 13 is the wound certificate in respect of the injuries found by him on the accused, in which it is found noted that the accused had a cut injury measuring 10 cms � 3 cms exposing muscle over lateral aspect of the right shoulder and a lacerated injury 1 1/2 cms � 1 cm � 0.5 cm on the right fore-arm below to right elbow. It is the opinion of the doctor that injury No. 2 found on the accused is grievous in nature.

On completing the investigation, a final report was filed by P.W. 20 against the accused oh 16.6.1989.

When questioned on the incriminating circumstances appearing against the accused, u/s 313 Cr.P.C, he denied his complicity and filed a written statement in which he has stated that at about 5.30 a.m. on 12.9.1988 the deceased and P.W.6 went to him and questioned him as to where he has hidden the daughter of P.W. 10. According to him, he was taken to task by both the deceased and P.W.6 and that the deceased asked P.W.6 to tie him to a pole saying uiat the time given to him was over even by the previous right. He further stated that P.W.6 held him and he tried to wriggle out of his clutches. According to him, the deceased cut him with an aruval on his right shoulder and when he ran from the scene, the deceased and P.W.6 chased him and that the deceased once again inflicted another cut on his right hand. He further averred that P.Ws.8, the son-in-law of P.W.6 also came and caught him and apprehending danger to his life, he snatched the ''aruval'' from the hands of deceased and threw it towards the deceased and P.W.6 and ran away from the scene. He has further stated mat on the same day, he surrendered before the Chief Judicial Magistrate, Trichy, who then referred him to the Trichy Government Hospital where he was treated and kept as an in-patient for ten days. In short, his plea was one of right of private defence.

The learned Sessions Judge while accepting the prosecution case rejected the defence theory and convicted and sentenced the accused as stated earlier and hence, the present appeal.

To prove that Govindaraj died on account of homicidal violence, the prosecution has examined the post-mortem doctor, P.W. 12, who has, in his evidence, stated that the deceased died on account of shock and haemorrhage due to the injuries found on the neck and the head and also issued Ex.P.8 the post-mortem certificate. The accused also does not deny that Govindaraj died on account of homicidal violence, but he contends, that he threw the aruval, in the exercise of his right of private defence to his person, towards the deceased and P.W.6.

Though the prosecution produced P.Ws.1 to 6 and 8 as eye-witnesses, all of them have turned hostile except P.W.6 who sustained injuries during the course of the same transaction. P.W.8, the son-in-law of P.W.6, though did not support the prosecution case by saying that he did not witness the occurrence, has stated that he heard the cries of his father-in-law, P.W.6, reached the scene of occurrence and saw the accused running away from the place and that his father-in-law was lying with injuries and further that P.W.6 told him that he was cut by the accused. Even if all the witnesses have turned hostile, the evidence of P.W.6 is found to be satisfactory. This court cannot reject his evidence.

We have perused the evidence of P.W.6, who has deposed to the effect that on the date of occurrence on account of prior enmity, the accused cut the deceased and that the accused also cut him and that when he warded off, he also sustained injuries. The doctor P.W.11, who examined P.W.6 and issued Ex.P-6, the wound certificate, found the injuries on the person of P.W.6 which we have already extracted in the earlier part of the judgment. The doctor has further opined that injury No. 2 found on P.W.6 was girevous in nature.

The learned counsel appearing for the accused contends that the origin of the case is suppressed since P.W.6 when questioned by the police officer, did not come out with any specific statement that he saw the accused cutting the deceased. We are unable to accept the said contention. According to P.W.6 on the morning of 12.9.1998, he was feeding the cattle in his cattle-shed and heard the cries of the deceased who was asking the accused, "What have I done for you to do this to me?" and that he came out and saw the accused cutting the deceased.

Even if the argument of the learned counsel for the accused that in the statement recorded u/s 161 Cr.P.C. P.W.6 did not specifically state that he saw the accused cutting the deceased and hence, the incident could not have been witnessed by P.W.6 regarding the actual cutting of the deceased by the accused, is accepted the words uttered by the deceased, which were heard by P.W.6 in fact indicate that the deceased was pleading with the accused not to cause any harm to him. The words heard by P.W.6 show that the accused must be the aggressor or otherwise, the deceased would not be asking the accused. "What I have done for you to do this to me?". According to P.W.6, when he came out, he was also cut by the accused and before the accused could inflict another cut, P.W.6 pushed him and that the accused fell down. The aruval which was in the hands of the accused, also fell on the ground and P.W.6 apprehending danger to his life, took the ''aruval'' and gave two cuts to the accused. The prosecution has not suppressed the injuries found on the accused and had come out with the version that it was P.W.6, who cut the accused apprehending danger to his life since me accused not only had cut the deceased, but also inflicted two cuts on P.W.6 and was aiming at P.W.6 to cut him further. It is also useful to note at this stage that neither P.W.6 nor the deceased had any motive for them to attack the accused as alleged by him in the written statement filed u/s 313 Cr.P.C. In his statement, the accused has stated that the deceased and P.W.6 accosted him and asked him as to where he has hidden the girl and that the deceased started attacking him. In our view, this statement is only an afterthought since according to P.W.10, the girl was sent away from the village even two days prior to the date of incident on the advice of the deceased and P.W.6 as the accused was visiting the house of P.W.10 and harassing the girl. The accused has every grievance against P.W.6 and the deceased whereas the other two have no ill-will or grudge against the accused for them to have attacked the accused asking as to where the girl is kept hidden. We are unable to accept the defence contention that the accused has acted in the exercise of his right of private defence.

At this juncture, it will be relevant to refer to Section 105 of The Indian Evidence Act. which contemplates that "When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances". It is of course true that before the provisions of Section 105 of The Indian Evidence Act are invoked, the prosecution must prove its case with reasonable certainty and once it is proved, the burden shifts to the accused and he should discharge the said burden by preponderance of probabilities and the court shall presume the absence of circumstances if the onus is not discharged by the accused.

As we stated earlier, though P.W.6 has, in his statement recorded u/s 161 Cr.P.C, did not specifically mention that he saw the accused cutting the deceased, he has in fact stated that he heard the deceased asking the accused "What I have done for you to do this to me", which clearly shows that the accused is an aggressor and he caused injuries on the deceased which resulted in his death.

Further, it is also worthwhile to note that the accused has not denied his presence at the time of occurrence and that he participated. In the written statement filed by him u/s 313 Cr.P.C, he has stated that when P.W.8, the son-in-law of P.W.6, attempted to catch him, he threw the ''aruval'' at the deceased and P.W.6 and ran away. A perusal of the post-mortem certificate Ex.P-8 issued by the post-mortem doctor. P.W. 12, as well as the wound certificate, Ex.P-6 issued by the doctor. P.W.11 in respect of the injuries found on the person of P.W.6 clearly show that such injuries found on both the persons could not have been caused by a mere throw of an "aruval".

In our view, the prosecution has succeeded in proving the case that the accused caused injuries not only on the deceased, but also on P.W.6. The medical evidence also supports the evidence of P.W.6. We see no reason to reject the prosecution case.

In the result, the conviction and the sentence imposed upon the accused by the learned Sessions Judge are confirmed and the appeal is dismissed.