Kannan vs State, Inspector of Police

M. Chockalingam, J.—The sole accused in a case of murder who stood charged, tried, found guilty as per the charge of murder and awarded life imprisonment along with a fine of Rs. 500/- and default sentence u/s 302 of I.P.C. and 1 year Rigorous Imprisonment u/s 324 of I.P.C. by a judgment of the Additional Sessions Judge, Fast Track Court No. II, Tuticorin, made in S.C. No. 537 of 2001, has brought forth this appeal.

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

(a) P.W.1 is the wife of the deceased Karuppasamy Mooppanar. The deceased, during the time of the occurrence, was employed as a Compounder in the Government Hospital, Tuticorin. All their children already got married and were living at different places. P.W.1 and her husband, on lease, were occupying a house of one Murugesan near Mukkani water tank. The deceased had a sister by name Gomathiammal, who had two sons Kandan and Subbukutty, and one daughter Pappathy. The said Kandan and Subbukutty had property dispute. A panchayat was convened in which the deceased was also one of the panchayatdars. In that panchayat, it was decided that Kandan should pay Rs. 37,000/- to Subbukutty. Accordingly, he paid. Both the family members were aggrieved to each other. Apart from this, the accused was also aggrieved over the deceased, since he was one of the panchayatdars. On the date of occurrence namely 19.6.2001, at about 9.15 P.M., when P.W.1 and her husband were standing in front of their house, the accused was proceeding from south to north. When he was moving so, he was staring at the deceased. Immediately, the deceased questioned him. On hearing this, he took an aruval from his back and attacked the deceased. When the deceased warded off, he fell down. P.W.1 went to the rescue of her husband, and in that course, she was also attacked and she sustained an injury in her right thumb. The occurrence was witnessed by P.Ws.2 and 3. Immediately, the accused fled away from the place of occurrence. They engaged a van and took P.W.1 and the deceased to the Government Hospital, Tuticorin. When they went over to the hospital, P.W.9, the Doctor, who was on duty at that time, medically examined P.W.1, and Ex.P7 is the copy of the accident register in her regard. As far as the deceased was concerned, he was declared dead. Ex.P9 is the copy of the accident register. An intimation was given to the respondent Police Station, and P.W.14, the Sub Inspector of Police, proceeded to the Government Hospital and recorded the statement of P.W.1, which is marked as Ex.P1. On the strength of Ex.P1, the complaint, a case came to be registered by the respondent police in Crime No. 102/2001 under Sections 302 and 324 of I.P.C. The express First Information Report, Ex.P16, was sent to the Court through a Constable.

(b) P.W.15, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P17. In the presence of witnesses and panchayatdars, he conducted inquest on the dead body of Karuppasamy Mooppanar and prepared an inquest report, Ex.P18. A requisition, Ex.P10, was given to the hospital authorities for conduct of autopsy.

(c) P.W.10, the Senior Assistant Surgeon, attached to the Medical College Hospital, Thoothukudi, on receipt of the said requisition, conducted autopsy on the dead body of Karuppasamy Mooppanar and found 6 injuries. The Doctor has issued a postmortem certificate, Ex.P11, with his opinion that the deceased would appear to have died of shock and haemorrhage due to the injury to vital organs.

(d) Pending the investigation, the accused was arrested on 20.6.2001. He volunteered to give a confessional statement, which was recorded. The admissible part of the same is marked as Ex.P4, pursuant to which he produced M.O.4, aruval, which was recovered under a cover of mahazar. The accused was taken to the hospital. P.W.11, the Doctor, medically examined the accused. The wound certificate in his regard is marked as Ex.P12. All the material objects recovered from the place of occurrence and from the dead body, and M.O.4, aruval, recovered from the accused, were subjected to chemical analysis, which resulted in two reports, Ex.P21, the Chemical Analyst''s report, and Ex.P22, the Serologist''s report. The Investigating Officer completed the investigation and filed the final report.

The case was committed to Court of Session and necessary charges were framed. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 22 exhibits and 12 material objects. On completion of the evidence on the side of the prosecution, 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 witness was examined. The Court below heard the arguments advanced, scrutinized the materials available, took the view that the prosecution has proved both the charges against the appellant/accused, found him guilty and awarded the punishment referred to above. Hence, this appeal before this Court at the instance of the appellant.

Advancing his arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the prosecution marched 3 witnesses as eyewitnesses; that out of these three witnesses, P.Ws.2 and 3 turned hostile, and thus, the prosecution had the only evidence of P.W.1; that P.W.1 could not have been present at the time of the occurrence; that according to the prosecution, the occurrence has taken place at the junction of Pudumanai Nadar Street facing Tuticorin Main Road (Mukkani); that sample earth and bloodstained earth were also recovered from that place; that the charge is also to that effect; that as to the place of occurrence, P.W.1 has categorically stated that the occurrence has taken place in front of her house; and that from Ex.P17, the sketch, it would be quite clear that the house is situated away from the place of occurrence, and thus, P.W.1 could not have been an eyewitness.

Added further the learned Counsel that P.W.1 has categorically admitted that immediately after the occurrence, they went to Athur Police Station and gave a report, which was also recorded, in which she also put her thumb impression; that if to be so, the first information which was alleged to have been given by P.W.1 to Athur Police Station has been suppressed; that now, the information which is marked as Ex.P1, is not the first information; and that under the circumstances, an adverse inference has got to be drawn.

Added further the learned Counsel that in the instant case, according to P.W.14, he received the information at about 23.15 hours, and immediately, he proceeded to the hospital and also recorded the statement of P.W.1, which is marked as Ex.P1, at 2.00 A.M. on 20.6.2001; that a perusal of Exs.P7 and P9, the accident register copies for P.W.1 and the deceased respectively, would clearly indicate that the death intimation was given at 4.30 A.M.; that under the circumstances, Ex.P1 could not have come into existence as put forth by the prosecution, at about 2.00 A.M.; that it is highly doubtful whether Ex.P1 has come into existence as claimed by the prosecution; that all put together would go to show that not only P.W.1 could not have been an eyewitness, but also the documents could have been fabricated in order to suit the case of the prosecution.

The learned Counsel would further submit that even assuming that the prosecution has proved the case that it was the accused who attacked the deceased and also P.W.1 at the time of occurrence, the act of the accused would not attract the penal provision of murder. The learned Counsel relied on the evidence of P.W.1, wherein she has categorically stated that originally, the accused was aggrieved over the panchayat in which there was a direction given to his father to pay Rs. 37,000/- to his paternal uncle; that accordingly, he has paid; that the deceased was one of the panchayatdars; that the accused was aggrieved by the said panchayat; that when he was proceeding at 9.15 P.M., both the deceased and his wife were standing, and it was the deceased who invited the trouble by calling him and asked why he was staring at him; that due to that, there arose a wordy quarrel; that according to P.W.1, there was a wordy quarrel for about 15 minutes; that all would go to show that there was not only provocation, but also quarrel; that in the heated exchange between them, the occurrence has taken place; that under the circumstances, benefit under the exception should be given to him, and it has got to be considered by this Court.

The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.

The fact that one Karuppasamy Mooppanar, the husband of P.W.1, following an incident that took place on 19.6.2001 at 9.15 P.M., at Mukkani Main Road, was taken to the hospital where she was declared dead, is not in dispute. Further, in the instant case, following the inquest made by the Investigating Officer, P.W.15, the dead body was subjected to postmortem by P.W.10, the Doctor, who has given a postmortem certificate wherein he has opined that the deceased died out of shock and haemorrhage due to the injuries sustained. That apart, the fact that Karuppasamy Mooppanar died out of homicidal violence was never questioned by the appellant/accused at any stage of the proceedings. Hence, without any impediment, it could be recorded so.

In order to substantiate the contention that it was the accused who attacked the deceased at the time of occurrence, the prosecution has examined three witnesses as eyewitnesses, out of whom P.W.1 is the injured witness. P.Ws.2 and 3 have turned hostile. Thus, P.W.1 was the only witness available for the prosecution. This Court is mindful of the caution made by the well settled proposition of law that in a given case, before accepting the evidence of a close relative of the deceased, and that too, when the evidence is uncorroborated, the Court must exercise the test of care and caution. In the instant case, despite the exercise of the test, this Court is satisfied that the evidence of P.W.1 has inspired the confidence of the Court. As far as P.W.1 was concerned, she was not only an eyewitness, but also an injured witness. Needless to say that in a given case like this, where a witness is an injured witness, the evidence of that witness should not be discarded unless and until a strong circumstance is noticed or reason is brought to the notice of the Court. In the instant case, no such circumstance is noticed.

According to P.W.1, she was standing with her husband in front of the house at about 9.15 P.M. on 19.6.2001, and at that time, the accused was just moving in front of them; but, he was staring at them, and on seeing this, her husband asked him why he was doing so, and immediately, he took an aruval and attacked him, and as a direct consequence, her husband died, and when she went to the rescue of her husband, she was also attacked, and she sustained injuries on the right thumb. Now, at this juncture, it remains to be stated that it was she who took her husband immediately to the Government Hospital, Tuticorin. The Doctor examined both the deceased and P.W.1, and the accident register copies issued by him, are marked as Exs.P7 and P9 respectively. It is quite evident that she has stated to the Doctor at the earliest that she was assaulted by a known person with an aruval at 9.15 P.M. on 19.6.2001 at Mukkani. Thus, P.W.1 is not only an eyewitness, but also an injured witness. In the absence of any circumstance or reason to cast a doubt on her testimony, the Court has to necessarily accept her evidence. Under the circumstances, the contention put forth by the learned Counsel form the appellant, has got to be rejected.

As far as P.W.1 was concerned, the learned Counsel would submit that she could not have been an eyewitness for the simple reason that according to her, the occurrence has taken place in front of her house and not at the place as claimed by the prosecution. This contention has got to be completely rejected for the simple reason that at the time of cross-examination, she has clearly stated that the occurrence has taken place at the road junction. In view of the evidence obtained by the cross-examiner, as found in the evidence, this Court is of the opinion that there is no deviation from the prosecution case in respect of the scene of occurrence.

As far as the other contention of the appellant''s side as to the FIR is concerned, the Court has to necessarily reject the same. The occurrence has taken place at 9.15 P.M. Immediately, P.W.1 and the deceased were taken to the hospital, and both were examined by the Doctor at a particular time, which is quite evident from Exs.P7 and P9, the accident register copies. That apart, an intimation was given to P.W.14, the Sub Inspector of Police, according to whom, he received the intimation at 23.15 hours, and he proceeded to the hospital, recorded the statement of P.W.1 at 2.00 A.M., came back to the Police Station and registered a case. Now, at this juncture, the evidence of P.W.14 that he recorded the statement of P.W.1 at the hospital at 2.00 A.M. was never denied even by way of a suggestion at the time of the cross examination. That apart, what is found in Exs.P7 and P9 that the intimation was received at 4.30 A.M., cannot be countenanced since it was the time when the FIR was received by the Magistrate. It is also brought to the notice of the Court that the Judicial Magistrate''s Court is situated 30 kilometers away from the respondent Police Station. The FIR was also received at 4.30 A.M. All would go to show that Ex.P1, the earliest document, has come into existence and the case came to be registered at the time, as put forth by the prosecution. Hence, the contentions of the appellant''s side have got to be discountenanced. Further, in the instant case, the medical opinion canvassed through the postmortem Doctor, stood in full corroboration of the ocular testimony. As far as P.W.1 was concerned, the accident register copy is also marked to that effect. All would go to show that the prosecution has proved the case in respect of the factual position that it was the accused who attacked the deceased and also P.W.1 at the time and place of occurrence as put forth. Hence, the case of the prosecution to that extent has got to be accepted.

So far as the second line of contention that the act of the accused would not attract the penal provisions of murder is concerned, this Court is able to see sufficient force in the contention. Even as per the prosecution case, there was a panchayat convened, in which the father of the accused was directed to pay Rs. 37,000/- to his paternal uncle, and he has also paid the same. In that panchayat, the deceased was also one of the panchayatdars. The accused was aggrieved over the panchayat. While the matter stood thus, at the time of occurrence, the accused was just passing through, and it was the deceased who called him and asked him why he was staring at him. At that time, the occurrence has taken place. P.W.1 has categorically admitted at the time of the cross-examination that there was a wordy quarrel between them for about 15 minutes. Thus, it would be quite evident that there was a quarrel that preceded the occurrence, and he has acted so. Hence, the act of the accused would not fall within the ambit of murder; but, it would attract the penal provisions of Section 304 (Part I). Taking into consideration the cumulative facts and circumstances, this Court feels that interest of justice would be met by awarding a sentence of 10 years Rigorous Imprisonment.

For the foregoing reasons, the conviction and sentence imposed by the trial Court u/s 302 of I.P.C., are modified, and instead, the appellant is convicted u/s 304 (Part I) of I.P.C., for which he is directed to suffer 10 years Rigorous Imprisonment. The sentence already undergone by him, shall be given set off.

As regards the charge u/s 324 of I.P.C., this Court is unable to notice anything to interfere in the finding recorded by the Court below either factually or legally, and hence, the judgment of the lower Court in that regard has got to be sustained. Accordingly, it is sustained.

In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed.