Kittusamy vs State

M. Chockalingam, J.—The sole accused, in a case of murder, on being found guilty of the charge by the Principal Sessions Judge, Coimbatore in S.C.No.110/97 has brought forth this appeal challenging the said judgment.

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

(a) P.Ws.1 and 3 are brothers of Marudamuthu, the deceased. P.W.2 and one Mayilathal are this sisters. Nachammal and Thirumathal are the daughters of the deceased. Nachammal was given in marriage to the accused. P.W.5 is the husband of Thirumathal. The deceased was residing at Thanthoni village while the accused was at Malaiyandipatti. The deceased was owning two cows, out of which, he sold one of them about 15 days prior to the occurrence. The said sale resulted in a quarrel between the deceased and his wife and she went to the house of one of her daughters, namely, Thirumathal. On the date of occurrence, namely, on 28.3.1994, P.W.1 went to the house of P.W.3 where P.W.2 was also present. As they were talking, they were informed that the deceased and the accused were quarrelling. Immediately, they rushed to the house of the deceased where the accused was found quarrelling with the deceased over the payment of Rs.4000/-, which the deceased was liable to pay to the accused. The accused demanded that the money should be paid immediately or else, he would take away the cow of the deceased. When the witnesses were trying to pacify them, the accused kicked Marudamuthu and with an iron rod, attached him thrice. Thereafter, the accused fled from the scene of occurrence leaving the weapon of offence, Marudamuthu was found to be dead. The occurrence was witnessed by P.Ws.1 to 3.

(b) P. W. 1 proceeded to the police Station at Udumalpet and lodged a complaint, Ex.P-1. P.W. 11, the Sub-Inspector of Police, on the strength of Ex.-P1, registered a case in Crime No. 188/94 for the offence u/s 302 I.P.C. The express First Information Report, Ex.P7, was dispatched to the Court and other higher officials.

(c) P.W.13, the Inspector of Police, on receipt of a copy of the First Information Report, took up investigation and proceeded to the scene of occurrence at 8.30 a.m. He inspected the spot and prepared an Observation Mahazar, Ex.P4, in the present of two witnesses. He also drew a rough sketch, Ex.P10. He caused photographs of the scene of occurrence to be taken. M.O.4 series and M.O.5 series are the photographs and the negatives. He recovered M.O.2, blood-stained cement plaster and M.O.3 - Sample cement plaster, in the presence of witnesses under Ex.P5. He conducted inquest over the dead body between 12 noon and 4 p.m. in the presence of panchayatars and witnesses and prepared the inquest report, Ex.P11. He sent to the dead body to Government Hospital, Udumalpet, with a requisition, Ex.P2, to conduct autopsy.

(d) P.W.4, the Civil Assistant surgeon, attached to Government Hospital, Udumalpet, on receipt of the requisition, conducted autopsy and found the following injuries:

Injuries:

Right eyelid and left eyelid swollen.

Contusion 7 x 3 cms over left molar region.

Depressed wound 2 in nos. each 7 x 2 cms over right shoulder one behind each other.

Abrasion 2 cms in length over the lower and mid 1/3 junction of left leg anteriorly.

Three depressed wounds 2 x 1cm each medial aspect of left elbow.

Haematoma 5 cm x 3 cm over left cheek found on dissection.

Spine of Scapula fractured over right side.

Two punched cut wounds 3 x 2 cms over lateral aspect of right elbow.

The doctor issued Ex.-P3, the post-mortem certificate with his opinion that the deceased would appear to have died of injury to vital organs i.e. brain and lung and haemorrhage in the thorax, about 32-40 hours prior to autopsy.

(e) P.W.13 examined further witnesses and recorded their statements. On 29.3.1994, the accused was arrested and he volunteered to give a statement, the admissible portion of which is Ex.P-12. Pursuant to the said statement, the accused produced M.O.1, the iron rod, which was recovered under Ex.P13. Then the accused was remanded in judicial custody. The material objects recovered from the scene of occurrence and from the dead body were sent to Court under Form 95. After completing the investigation. P.W.13 filed the final report before the Committal Court on 2.1.1995.

The case was committed by the Court of Sessions and necessary charges were framed. To substantiate the charges, the prosecution examined 13 witnesses and relied on 13 exhibits and 9 material objects. After completing of evidence on the side of the prosecution, the accused was questioned u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. No defence witnesses were examined. On hearing the arguments advanced by the learned counsel on either side and on scrutiny of the material on record, the learned Trial judge found the accused/appellant guilty of the charge and awarded life imprisonment, which is the matter of challenge in this appeal.

Learned counsel for the appellant, inter alia, would submit that the Lower Court should have acquitted the accused in view of the discrepant evidence adduced by the prosecution. Though the prosecution examined P.Ws.1 to 3 as witnesses to the occurrence, a reading of their evidence would clearly show that it is highly artificial. According to the learned counsel, the contradictions in the evidence of P.Ws.1 to 3 are suffice to reject the prosecution case. The learned counsel would further submit that the prosecution version that P.Ws.1 to 3, on being informed about the quarrel between the deceased and the accused, went to the house of the deceased to know about the quarrel, which was between father-in-law and son-in-law, is highly improbable. The learned counsel would state that even assuming the prosecution version is true, there is sufficient evidence to show that the occurrence had taken place in the midst of a quarrel, which would indicate that the accused, which would indicate that the accused, due to the quarrel, had attacked the deceased out of sudden provocation and therefore, the act of the accused would not come within the ambit of murder, but would fall under exception 4 to Section 300 I.P.C. and that aspect has got to be considered by this Court. The Court heard the learned Additional Public Prosecutor for the State on the above contentions.

The fact that Marudamuthu, the deceased, died of homicidal violence has been established by the prosecution through the evidence of P. W.4, the doctor who conducted autopsy and Ex.-P3, the post-mortem certificate. Apart from that, the said fact is not disputed by the accused either before this Court or before the Lower Court and hence, it can be safely concluded that Marudamuthu died of homicidal violence.

The prosecution, in order to prove their case, has brought forth the evidence of P.Ws. 1 to 3. This Court is mindful of the fact that their evidence has to be scrutinized carefully as they are related to the deceased. It is to be stated that in spite of careful scrutiny, their evidence remains unshaken and inspires the confidence of the Court. At this juncture, it has to be pointed out that both the deceased and the accused are related to P.Ws.1 to 3 and in these circumstances, there is no reason, whatsoever for P.Ws.1 to 3 to implicate the accused in the crime. As rightly pointed out by the Lower Court, their evidence is not only real and trustworthy, but it is also supported by medical evidence. Further, the recovery of M.O.1, iron rod, at the instance of the accused, pursuant to the confession statement, prove that it is the accused, who attacked the deceased with the iron rod and caused his death.

Now, coming to the question of offence committed by the accused, this Court has to necessarily agree with the learned counsel for the appellant that exception 4 to Section 300 I.P.C. would get attracted. From the evidence of P.Ws 1 to 3, it is clear that prior to the concurrence, there was a quarrel between the deceased and the accused as to the payment of Rs.4000/-, which the deceased was liable to pay to the accused/ appellant and in the midst of the said quarrel, on a sudden provocation, the accused had attacked the deceased. In the circumstances, the Court is of the opinion that the act of the accused would not fall within the ambit of murder and would fall under exception 4 to Section 300 I.P.C. and thus, it can be termed as culpable homicide, not amounting to murder, since, while acting so, it would have been within the knowledge of the accused that the injuries inflicted by him are likely to cause death. Accordingly, the conviction and sentence imposed on the appellant u/s 302 I.P.C. are set aside and instead, he is convicted u/s 304(11) I.P.C. for which he shall stand sentenced to 5 years RI. The appeal is disposed of accordingly.