Mahadevan vs State

M. Chockalingam, J.—Challenge is made to a judgment of the I Additional Sessions Division, Thanjavur, made in S.C. No. 436 of 2008 whereby the sole accused/appellant stood charged under Sections 307 (two counts), 324 and 302 of IPC, tried, found guilty under Sections 307 and 302 of IPC and awarded 5 years Rigorous Imprisonment along with a fine of Rs. 1000/- and default sentence u/s 307 IPC and life imprisonment along with a fine of Rs. 2000/- and default sentence u/s 302 of IPC, while he was acquitted of the other charges.

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

(a) P.W.1 is the brother of the accused. P.W.2 is the wife of P.W.1. P.W.3 is the wife of the deceased Arjunan and also the mother-in-law of the accused. P.W.4 is the son of the deceased. The house of the accused is situated within a furlong from the place of the prosecution witnesses. The daughter of P.W.3 was given in marriage to the appellant/accused, and he used to come home in a drunken mood. He was not properly maintaining the daughter of P.W.3.

(b) On the date of occurrence that was 19.2.2008, at about 10.00 P.M., P.W.3 went to the house of the appellant/accused and scolded him that he was not maintaining his daughter properly, and his activities were not only irregular, but also he was always in drunken mood, and matrimony was disturbed. At about 11.00 P.M., P.W.3, her husband the deceased, and P.Ws. 1 and 2 were all sitting outside the house and were chatting. At that time, he came there and attacked all of them. All of them sustained injuries. When P.W.3, the wife of the deceased, was being attacked, the deceased husband intervened and came to the rescue, and not satisfied with his act, he attacked the deceased with an aruval indiscriminately and caused his death instantaneously. Immediately, all of them were taken to the Government Hospital, Kumbakonam, and they were all given treatment by P.W.5, the Doctor. The accident register copy in respect of the deceased is marked as Ex.P2. The accident register copies in respect of P.Ws.1 to 3 are marked as Exs.P3, P5 and P7 respectively.

(c) An intimation was given to the respondent police station. On receipt of the same, P.W.16, the Sub Inspector of Police, rushed to the hospital and recorded the statement from P.W.1 which is marked as Ex.P16. On the strength of Ex.P16, he registered a case in Crime No. 52 of 2008 under Sections 294(b), 307 and 324 of IPC. The printed FIR, Ex.P17, was sent to the Court.

(d) P.W.18, the Inspector of Police of that Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared observation mahazars, Ex.P9 and P11, and also rough sketches, Ex.P19 and P20. In the meantime, Arjunan died on 21.2.2008. On receipt of the death intimation, the Investigator altered the case into Section 302 of IPC. The alteration report, Ex.P21, was sent to the Court. Then he conducted inquest on the dead body of Arjunan in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P22. A requisition was forwarded to the hospital authorities for the purpose of autopsy.

(e) P.W.17, the Tutor in Forensic Medicine, Thanjavur Medical College, on receipt of the said requisition, conducted autopsy on the dead body of Arjunan and has issued a postmortem certificate, Ex.P18, with his opinion that the deceased would appear to have died due to head injury involving the vital organ brain.

(f) Pending investigation, the accused was arrested on 22.2.2008. He came forward to give a confessional statement which was recorded. The admissible part is marked as Ex.P12, pursuant to which he produced M.O.1, aruval, which was recovered under a cover of mahazar. He was sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body and M.O.1, aruval, were subjected to chemical analysis which brought forth two reports namely Ex.P14, the chemical analyst''s report, and Ex.P15, the serologist''s report, and they were also placed before the Judicial Magistrate''s Court. On completion of investigation, the Investigator 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 18 witnesses and also relied on 22 exhibits and 5 material objects. On completion of 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. But one document was marked on his side. The trial Court heard the arguments advanced on either side, and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty and awarded life imprisonment which is the subject matter of challenge before this Court.

Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, P.Ws. 1 and 2 though claimed to have been injured by the act of the accused at the time and place of occurrence, have turned hostile, and thus their evidence was not available to the prosecution; that the other witnesses and in particular P.W.3, are all closely related to the deceased; and that the discrepancy found in the evidence among the witnesses and also the inter se would clearly indicate that their evidence should have been rejected by the trial Court.

Added further the learned Counsel that though P.W.3 who is the wife of the deceased, claimed to be at the place of occurrence and was also injured, she could not account for the injuries that are noticed by the postmortem Doctor and noted in the postmortem certificate; that the recovery of the weapon pursuant to the confessional statement made by him voluntarily on his arrest on 22.2.2008, cannot but be false since the evidence adduced by the prosecution in that regard was completely helpless and shaky, and under the circumstances, the trial Judge should have rejected the case outright.

Added further the learned Counsel that in the instant case, he has acted due to the sustained provocation, and hence it would not attract the penal provision of murder; that admittedly, P.W.3, the mother-in-law of the accused, went to his house just half an hour before the occurrence and scolded him; that he was actually provoked and then he came to the house of P.W.3 in order to question the same; that at that time, the deceased had intervened; that under the circumstances, he has acted so due to sudden provocation; that the act of the accused was neither premeditated nor intentional; that it would not attract the penal provision of murder, but culpable homicide not amounting to murder; and that this legal position which the trial Court has failed to consider, has got to be considered by this Court.

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

It is not in controversy that one Arjunan, the husband of P.W.3 and the father of P.W.4, was done to death in an incident that had taken place at about 11.00 P.M. on 19.2.2008, in front of the house of the witnesses. It is true that the prosecution has examined nearly about five witnesses as occurrence witnesses, out of whom P.Ws. 1 and 2, who are none else than the brother of the accused and wife of P.W.1 respectively. Nothing in favour of the prosecution or against the appellant/accused could be expected from them, and naturally they have turned hostile. But, out of the witnesses, one has actually sustained injuries in the same transaction. It is settled proposition of law that in a given case like this, when a witness who happened to be an eyewitness, was injured in the course of the very same transaction his evidence should not be discarded by the Court, unless and until a strong circumstance is noticed by the Court or reason is brought about by the accused. In the case on hand, it is true that P.W.3 is the wife and P.W.4 is the son of the deceased. In such circumstances, it is a fit case where before acceptance, careful scrutiny test must be applied. P.Ws.3 and 4 have in one voice spoken to the fact that they were actually sitting in front of the house along with the deceased and were chatting, and at that time, the appellant/accused armed with the weapon came over there and attacked all of them, and while he was attacking P.W.3, the wife, the deceased husband intervened, and at that time, he attacked him indiscriminately and caused his death. As far as P.W.3 is concerned, the accident register copy is marked as Ex.P4. The Medical Person has also been examined as P.W.5 in order to corroborate the testimony.

Yet another circumstance which was strong against the appellant/accused was the recovery of M.O.1, weapon of crime, which was made pursuant to the confessional statement given by the accused and recorded by the Investigator. A witness has also been examined to that effect. The evidence of that witness remained unshaken, and hence that part of the evidence adduced by the prosecution, has got to be accepted as has been rightly done by the trial Judge. All would clearly indicate that it was the accused who has actually caused the death of the deceased and also attacked P.W.3 and caused injuries to her.

Insofar as the second line of argument put forth by the learned Counsel for the appellant that the act of the accused was due to sustained provocation, this Court is unable to agree with him for the following reasons. It is an admitted position that P.W.3 is the mother-in-law of the appellant/accused who was residing with his wife within one furlong from the house of P.W.3. On the date of occurrence at about 10.00 P.M., P.W.3 went to the house of the appellant/accused and scolded him that he used to come to the house every day in a drunken mood and her daughter could not carry on the family life peacefully. After that, she returned home, and after half an hour, the accused armed with an aruval, came to the house of P.W.3 where P.W.3 along with the deceased and others was sitting outside the house and they were chatting, and at that time, he attacked P.W.3. At this juncture, it is pertinent to point out that even assuming that he was actually provoked by the words uttered by P.W.3, he could have got all his grudge only against P.W.3 and not against her husband the deceased. When P.W.3, the wife of the deceased, was attacked by a person with a deadly weapon, it is quite natural for the husband to intervene, go to the rescue and save her. At the same time, it is pertinent to point out that the appellant/accused could not have any grudge against the father-in-law who was simply sitting in front of the house. Hence the act of the appellant/accused could not be an outcome of any provocation, much less sustained provocation, and thus it can be well stated that he has attacked the father-in-law who has nothing to do with the incident that had taken place in the house of the appellant, but he has gone to the rescue and to save his wife, P.W.3. This Court is of the view that the act of the accused cannot but be termed only as murder. The trial Court has found him guilty under Sections 307 and 302 of IPC and awarded the punishment as referred to above, which, in the considered opinion of this Court, does not suffer from any infirmity either factually or legally.

In the result, this criminal appeal fails, and the same is dismissed.