Meiyar vs State

M. Chockalingam, J.—Challenge is made to the judgment of the learned Sessions Judge, Sivagangai passed in S.C. No. 28 of 2008 on 30.03.2009, whereby the sold accused/appellant stood charged, tried, found guilty u/s 302 IPC and awarded life imprisonment along with a fine and default sentence.

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

a) P.W.1 is the sister of the accused and P.W.2 is the husband of P.W.1. P.W.3 is the brother of the accused. P.W.4 is the wife of P.W.3. P.W.5 is the brother of P.W.1. P.W.6 is the father of the deceased Rajeswari. P.W.7 is the brother of the deceased. P.W.1 is the native of the Kandanur within the jurisdiction of the respondent Police Station. P.W.1 invited the accused who is her brother, along with his wife for a festive occasion on 28.03.2007. P.Ws.1 to 5 were all in the house of P.W.1 at the time of occurrence. At about 6.30 p.m., the accused stabbed his wife in a number of places and also stabbed himself. The deceased and the accused/appellant were admitted in the Government Hospital, Karaikudi. P.W.9-Dr. Gowsalya, who was on duty, admitted the deceased at about 8.00 p.m. The Accident Register copy of the deceased has been marked as Ex.P2. The accused/appellant was also admitted on the same day at 08.05 p.m. The Accident Register copy of the accused has been marked as Ex.P3.

b) On receipt of the intimation from the hospital, P.W.16, Sub-Inspector of Police proceeded to the Government Hospital, Karaikudi and recorded the statement of P.W.1 on 28.03.2007 at 22.00 hours under Ex.P15. On the strength of Ex.P15, he registered a case in Crime No. 52 of 2007 u/s 302 IPC. Express FIR Ex.P.16 was despatched to the Judicial Magistrate Court and the copies were also sent to the higher-ups.

c) On receipt of copy of the FIR, P.W.17, the Inspector of Police, took up the investigation, proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared an Observation Mahazar Ex.P.18, and Rough Sketch Ex.P.19. Further, he conducted inquest over the body of the deceased on 29.03.2007 from 6.00 a.m. to 9.00 a.m. in the presence of witnesses and panchayatars and prepared Ex.P17-Inquest Report and the dead body was sent for the purpose of autopsy. Thereafter, P.W.17 recovered M.Os.1 to 3 from the place of occurrence in the presence of witnesses under a cover of Ex.P20-Seizure Mahazar.

d) P.W.10, the Doctor attached to the Government Hospital, Karaikudi conducted autopsy on the dead body of the deceased and he gave his opinion under Ex.P5-Post Mortem Certificate, that the deceased would appear to have died of shock and injury to major organs 14 to 20 hours prior to autopsy. M.Os.4 and 5 were recovered from the dead body of the deceased.

e) Pending investigation, on 11.04.2007 at about 14.00 hours, the investigator arrested the accused. The accused came forward to give a confessional statement, and the same was recorded. The accused was sent for judicial remand.

f) All the material objects recovered from the place of occurrence and from the dead body of the deceased were sent for chemical analysis pursuant to a requisition, Ex.P9, given by the Investigating Officer to the concerned Judicial Magistrate. Two reports were received. One is Ex.P.11, the Chemical analysis report and the other is Ex.P.12, the Serologist report. On completion of the investigation, the Investigating Officer has filed the final report before the concerned court, which in turn committed the case to the court of sessions and necessary charges were framed.

g) In order to substantiate the charges, at the time of trial, the prosecution examined 18 witnesses and relied on 20 exhibits and 5 M.Os. On completion of the evidence on the side of the prosecution, the accused/appellant was questioned u/s 313 Code of Criminal Procedure as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. No defence witness was examined. After hearing the arguments of the counsel and looking into the available materials, the Trial Court, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty and awarded the punishment as referred to above. Under these circumstances, this criminal appeal has arisen at the instance of the accused/appellant.

Advancing arguments on behalf of the accused/appellant, the learned Counsel for the accused/appellant would submit that, in the instant case, P.Ws.1 to 5 had actually been examined as eye witnesses and all of them have turned hostile. P.W.1 is only an informant to the police and even P.W.6 has deposed that he went to the hospital after he came to know about the incident and thus, the prosecution had no direct evidence to offer.

Learned Counsel for the accused/appellant would further add that in the instant case, the prosecution placed its reliance only on the statement alleged to have been made by the deceased to P.W.9-Doctor, who examined the deceased and prepared Accident Register marked as Ex.P2. The learned Counsel would further add that the doctor has categorically stated at the time of cross-examination that the health condition of the deceased was in such a situation that she could not have been in a position to make any statement, and even as per the Doctor''s evidence, the deceased was brought to the hospital at 8.00 p.m. and the accused was brought to the hospital at 8.05 p.m. by one Moorthy, but the said Moorthy has not been examined, which creates doubt in the case of the prosecution.

Learned Counsel for the accused/appellant would further add that the accused also sustained injuries as evident from Ex.P3 and according to P.W.9-the Doctor, this fact was stated by the deceased herself to her, but the same is not found in Ex.P2 and therefore, it is clear that the contents in Ex.P2 were later introduced by the Medical Officer at the instance of the Investigator to suit the case of the prosecution.

Added further the learned Counsel that the occurrence took place at 6.30 p.m. and according to the Sub-Inspector of Police, on receipt of intimation from the hospital, he went to the hospital and recorded the statement and registered the case at 10.00 p.m., but the copies reached the Judicial Magistrate only on the next day at 8.30 a.m. and there was a long inordinate delay of more than 10 hours for which the prosecution had no explanation to offer, which would be indicative of the fact that after the occurrence the case could not have been registered, as put forth by the prosecution.

Added further the learned Counsel that in a given case, where a dying declaration is recorded by a Magistrate, it must be certified by a Medical Officer that the declarant was in a fit state of mind, but in the instant case, it was not recorded by the Judicial Magistrate and it was only a statement recorded by the Doctor and hence it cannot be presumed that she should have been in a fit state of mind while giving the statement. Therefore, according to the learned Counsel, sustaining a conviction on the strength of such a statement given by the deceased is highly unsafe and under the circumstances, the learned Trial Judge has taken an erroneous view and hence the judgment of the Trial Court has got to be set aside.

Learned Counsel for the accused/appellant would further add that even assuming that the incident has taken place as put forth by the prosecution, the act of the accused/appellant would not come within the penal provisions of murder. The learned Counsel took the court to the evidence of P.W.6 and also P.W.7 and stated that there were instances to point out that the deceased had illicit intimacy with one Periyakaruppan and she used to go to her parental house and hence she has a bad antecedent. He further submitted that even in the statement u/s 313 of Code of Criminal Procedure, the accused has stated that he found her and the said Periyakaruppan in a compromising position and under the circumstances, he stabbed her and ran away from the place of occurrence. Therefore, according to the learned Counsel, the act of the accused would not come under the penal provisions of murder.

The court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and also scrutinised the materials available.

From the available materials placed before the Trial Court, it is found that the occurrence took place in the house of P.W.1 at about 6.30 p.m. The deceased was taken to the hospital where she was examined by P.W.9-Doctor. The deceased died in the hospital. A complaint was given by P.W.1 to the Police in the hospital. The post mortem of the dead body of the deceased was carried out by P.W.10, the results of which would show that the deceased died of homicidal violence. These facts were never disputed by the appellant before the Court below.

In order to substantiate that it was only the accused who stabbed the deceased to death, the prosecution relied on five witnesses, namely, P.Ws.1 to 5, but all of them have turned hostile. Therefore, the prosecution relied upon the evidence of P.Ws.6 and 7 to prove its case. Thus the prosecution had no direct evidence to offer.

After careful scrutiny of the available materials, this Court is of the considered opinion that the prosecution has established the guilt of the accused. Immediately after the occurrence, both the deceased and the accused were taken to the Government Hospital, Karaikudi at 8.00 p.m. and 8.05 p.m., respectively. The Doctor has carefully examined both of them and noted the contents under Ex.P2 and Ex.P3, respectively. Ex.P2 reads that she was conscious. Insofar as Ex.P3 is concerned, it would clearly indicate that the accused was drowsy and he was not answering to the questions put to him. A very reading of Ex.P2 would clearly indicate that the deceased was conscious and she was able to answer the questions. She has categorically stated that it was her husband who stabbed her and caused injuries, and that her husband also sustained injuries and it was self-inflicted.

The contention of the learned Counsel for the accused/appellant that the contents in Ex.P2 were later introduced by the Medical Officer at the instance of the Investigator to suit the case of the prosecution, cannot be accepted, since according to P.W.9-Doctor, the deceased was conscious enough at the time when she was admitted in the hospital and the same is clear from the words uttered by her. From the available materials, it is seen that Ex.P2 and Ex.P3 came into existence immediately at about 8.00 p.m. and 8.05 p.m. respectively even before the case was registered. P.W.16, on receipt of intimation from the hospital, went to the hospital only at 10.00 p.m. Therefore, Ex.P2 and Ex.P3 are earlier in point of time and the police came only later and they were not present earlier. Non-examination of one Moorthy, who accompanied the deceased and the accused to the hospital would not in any way affect the case of the prosecution. It is true that the F.I.R. reached the Court belatedly. It reached the Court only at about 8.30 a.m. on the next day. However, in the opinion of this Court, this delay will not affect the case of the prosecution.

The contention raised by the learned Counsel for the accused/appellant that the contents of Ex.P2 were later introduced cannot be accepted because, at the time of giving the statement, the deceased was able to speak about the fact. The Doctor has categorically stated that she was conscious at that time.

With regard to the next contention of the learned Counsel for the accused/appellant that the act of the accused would not come under the penal provisions of murder, since there were instances to point out that the deceased had illicit intimacy with one Periyakaruppan, a perusal of the statement made under 313 of Code of Criminal Procedure by the accused, would indicate that he found his wife and the said Periyakaruppan in a compromising position, and therefore at that time, on seeing this, the said Periyakaruppan got wild and attacked the accused on his stomach and the accused had also ran away from that place. This would clearly indicate that first of all, the presence of the accused at the place of occurrence along with the deceased is established, but at the same time, the way in which the statement was put forth before the Trial Court is highly artificial. Even assuming that the said Periyakaruppan and the deceased were in a compromising position, as alleged by the accused, the conduct of such person would be only to ran away from the place of occurrence and not to attack the accused. Further, there is no reason for him to attack the accused. But from the available materials on record, it is quite clear that the accused was actually available in that place along with the deceased, and that the accused stabbed her to death.

Insofar the second limb of argument as put forth by the learned Counsel for the accused/appellant, this Court finds force in the submission of the learned Counsel that there is evidence to show that the deceased was having illicit intimacy with the said Periyakaruppan and she was staying in her parental house. On the date of occurrence, the accused found the deceased and the said Periyakaruppan in a compromising position and at that time, due to sudden provocation, the occurrence took place. In such a situation, one can be provoked naturally to attack that person and also to make an attempt to stab himself. The incident would indicate that the act of the accused cannot be termed as murder but it is culpable homicide not amounting to murder and it comes u/s 304(1) of the Code.

Accordingly, the conviction and the sentence of life imprisonment imposed by the Trial Court on the accused/appellant u/s 302 IPC are set aside and instead, he is convicted u/s 304(1) IPC and he is directed to suffer seven years Rigorous Imprisonment. The imprisonment already undergone by the accused/appellant shall be given set off. The fine amount imposed by the Trial Court will hold good.

The Criminal Appeal is disposed of accordingly.