Micheal Raj and Vincent vs State

M. Chockalingam, J.—The appellants are two in number, who were ranked as Accused Nos. 2 and 4 respectively in Sessions Case No. 131 of 2004 on the file of learned Additional Sessions Judge, Fast Track Court, Dindigul stood charged along with three others shown as accused Nos. 1, 3 and 5, faced trial on different charges as set out below.

Accused Nos. Charge Accused Nos. 1, 3 & 5 u/s 147 IPC & Section 323 IPC Accused Nos. 2 & 4 u/s 148 IPC Accused Nos. 1 to 5 u/s 341 IPC Accused No. 4 u/s 302 IPC Accused No. 2 u/s 324 IPC Accused Nos. 1,2,3 & 5 Under Sections 302 & 324 read with Section 149 IPC

and on trial, accused No. 2/appellant No. 1 was found guilty u/s 323 IPC, convicted thereunder and sentenced to pay a fine of Rs. 500/-, in default to undergo three months rigorous imprisonment and accused No. 4/appellant No. 2 was found guilty u/s 302 IPC, convicted thereunder and sentenced to undergo life imprisonment and also to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for one year and while these two appellants were acquitted of all other charges, the other three accused were acquitted of all the charges levelled against them. Challenging the said conviction and sentence, the appellants have preferred this appeal.

The brief facts necessary, sans unnecessary facts, for the disposal of the appeal can be stated thus:

(a) P.W.1 Anthonisami is the father of the deceased David. One Jayakumar and the accused party had a civil dispute in respect of lands, in which David was supporting the cause of the said Jayakumar. Before the occurrence in question, there was an accusation against David and others that they stole some documents and jewels from the house of the accused party and on a criminal complaint, a case was registered against them and they were taken to custody. They moved for bail and on 12.01.2001, David came out on bail. On that day, at about 10.00 p.m., after taking his dinner, David came out of his house and he was abusing the accused whose residences situate nearby. At that time, accused No. 4 armed with an aruval, accused No. 2 armed with a cycle chain and other three accused with sticks constituted themselves into an unlawful assembly, came over to the place of occurrence with the common object to kill David and accused No. 4 cut indiscriminately on David and when P.W.1 intervened he was attacked by accused No. 2 with cycle chain and at that time accused Nos. 1, 3 and 5 also attacked P.W.1 with sticks. This occurrence was witnessed not only by P.W.1 but also by P.Ws.2 to 5, who are close relatives of the deceased, inhabitants of the same house. Immediately after the occurrence was over, when distressing cry was raised, all the accused fled away from the scene of occurrence with their respective weapons of crime. David died instantaneously. In that course P.W.1 also sustained injuries. P.W.1 was taken to a private Hospital in Dindigul. Ex.P-8 is the Accident Register issued to P.W.1.

(b) P.W.11, the Head Constable attached to the respondent police station, received a phone call from the said hospital at about 01.15 a.m. on 13.01.2001, proceeded to the hospital, recorded the statement given by P.W.1, which is marked as Ex.P-1, returned to the police station and on the strength of Ex.P-1, registered a case at 03.30 a.m. in Crime No. 29/2001 under Sections 147, 148, 341, 323, 324 and 302 IPC. Ex.P-9 is the first information report, which was sent to the Court through P.W.12, Grade-I Constable.

(c) P.W.16, the Inspector of Police, on receipt of a copy of Ex.P-9, took up the investigation, proceeded to the place of occurrence, made an observation and prepared Ex.P-21, the observation mahazar, in the presence of witnesses. He also drew Ex.P-20, the rough sketch. From the place of occurrence, he recovered M.O.6, the bloodstained earth and M.O.7, the sample earth under Ex.P-3 mahazar. In the presence of witnesses and panchayatdars, P.W.16 conducted inquest on the body of the deceased David and prepared Ex.P-22, the inquest report. Thereafter, he sent the body for postmortem through P.W.8, the constable, with Ex.P-6 requisition. P.W.16 enquired some witnesses and recorded their statements.

(d) P.W.9, the doctor attached to the Government Hospital, Dindigul, conducted postmortem at 12.30 p.m. on 13.01.2001 and Ex.P-7 is the postmortem certificate given by him, wherein he has opined that the deceased would appear to have died of haemorrhage and shock due to injuries sustained. After postmortem, M.Os.8 to 11, the bloodstained personal wearing apparels of the deceased, were collected by P.W.8, the constable, from the dead body.

(e) Pending investigation, P.W.16, the Inspector of Police, arrested accused No. 5 at 4.00 p.m. on 13.01.2001` in the presence of P.W.7 and another and when enquired, she volunteered to give a confessional statement, admissible portion of it is marked as Ex.P-24, pursuant to which accused No. 5 produced M.O.5 stick and the same was recovered under Ex.P-23 mahazar and thereafter accused No. 5 was subjected to judicial remand. On 27.01.2001, P.W.16 arrested accused No. 4 Vincent and accused No. 3 Antony in the presence of P.W.13 and another and on enquiry, accused Nos. 4 and 3 volunteered to give separate confessional statements, admissible portion of the same are marked as Ex.P-25 and Ex.P-27, respectively and pursuant to which accused No. 4 produced M.O.1 aruval and the same was recovered under Ex.P-26 mahazar and accused No. 3 produced M.O.4 stick and the same was recovered under Ex.P-28 and thereafter they were subjected to judicial remand. On 31.01.2001, P.W.16, the Inspector of Police, arrested accused No. 2 in the presence of P.W.14 and another and when enquired he volunteered to give a confessional statement, admissible portion of it is marked as Ex.P-14, pursuant to which accused No. 2 produced M.O.2 cycle chain and the same was recovered under Ex.P-16 mahazar attested by the same witnesses and thereafter he was sent to judicial custody. Accused No. 1 surrendered before the Court and on an application, he was taken to police custody and when enquired in the presence of P.W.14 and another, he volunteered to give a confessional statement, admissible portion of it is marked as Ex.P-17, pursuant to which he produced M.O.3 stick and the same was recovered under Ex.P-19 mahazar, attested by the same witnesses and thereafter he was sent back to judicial custody.

P.W.16, the Inspector of Police, gave Ex.P-31 requisition to the court to subject all the material objects recovered from the place of occurrence, from the body of the deceased and pursuant to the confessional statements given by the accused to chemical analysis, which resulted in two reports, namely Ex.P-33 the serologist''s report and Ex.P-32 the chemical examiner''s report. On completion of the investigation, P.W.16, the investigator, filed the final report before the concerned Judicial Magistrate Court on 27.04.2001.

The case was committed to the Court of Session and necessary charges were framed. To substantiate the charges levelled against the accused, the prosecution marched 16 witnesses as P.Ws.1 to 16 and relied on 33 documents, marked as Exs.P-1 to P-33 as well as eleven material objects, marked as M.Os.1 and 11. On completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused denied them flatly as false. No defence witness was examined. The trial court heard the arguments advanced on either side, scrutinised the materials available and found accused No. 4 guilty u/s 302 IPC and accused No. 2 u/s 323 IPC and imposed punishments on them as referred to above and in respect of the other charges against accused Nos. 2 and 4 and in respect of all the charges against accused Nos. 1, 3 and 5, the trial court took the view that the prosecution has not proved the same and hence acquitted them of those charges. Hence this appeal at the instance of accused Nos. 2 and 4 before this Court.

Advancing his arguments on behalf of the appellants, Mr. M. Vallinayagam, learned Counsel, made the following submissions.

(a) In the instant case, the prosecution relied on the evidence of P.Ws.1 to 5 as eye-witnesses to the occurrence but, all those witnesses are close relatives of the witnesses as P.W.1 and P.W.2 are the parents of the deceased, P.W.3 is P.W.1''s brother''s son, P.W.4 is the wife of P.W.3 and P.W.5 is also a close relative of the deceased. The occurrence is said to have taken place at about 10.00 p.m. in the night and at that time all these witnesses would have been sleeping but, however, all these witnesses have come forward to give evidence as if they have actually witnessed the occurrence and therefore the test of careful scrutiny has got to be applied before acting upon their evidence and if such test is applied their evidence will not stand scrutiny.

(b) Added further, the learned Counsel would submit that there are lot of discrepancies among their testimonies in material particulars and hence the lower court should have rejected the prosecution case. The lower Court also accepted the alleged confessional statements given by accused Nos. 2 and 4 and the alleged recovery of M.Os.1 and 2 but, the evidence adduced in this regard, if looked into, would clearly indicate that they are all artificial and nothing but an introduction to suit the prosecution case.

(c) Further, the evidence of P.Ws.1 to 5, the alleged eye witnesses to the occurrence, would indicate that they have not given correct account for the injuries found in Ex.P-7, the postmortem certificate and this would be indicative of the fact that they are not eye-witnesses to the occurrence. Though the trial Court was unable to accept the case of the prosecution in respect of accused Nos. 1, 3 and 5 based on the evidence adduced, it accepted the very same evidence insofar as accused Nos. 2 and 4/appellants are concerned and found them guilty and this is a matter of surprise when the prosecution is not able to put-forth acceptable evidence in respect of accused Nos. 1, 3 and 5 and the lower court has also not believed their evidence and rejected it in respect of accused Nos. 1, 3 and 5, the lower court erroneously found accused Nos. 2 and 4 guilty and therefore they are entitled to an acquittal at the hands of this Court.

(d) Added further, the learned Counsel would submit that even assuming that the prosecution has proved that it was accused No. 4 who attacked the deceased with M.O.1 aruval and caused his instantaneous death, the act of accused No. 4 would not attract the penal provision of murder, for the simple reason that even as per the evidence of P.Ws.1 and 3, the deceased came out on bail on the very day of occurrence and after taking his dinner he came out of the house and abusing the accused persons who are the neighbours and when the accused persons attempted to stop the deceased from abusing he did not stop but went on abusing and therefore being provoked of the same he was attacked by the accused and hence the act of accused No. 4 was only due to sudden provocation impelled by the deceased by abusing the accused at the time of occurrence and under such circumstance his act was neither intentional nor pre-meditated and thus it would attract the benefit given under exceptions to Section 300 IPC and this has got to be considered by this Court.

The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions.

The Court paid its anxious consideration to the submissions made on either side and also made a thorough and careful scrutiny of the available materials.

In the instant case, it is not the fact in controversy that one David, son of P.Ws.1 and 2, had been done to death in the incident that took place at 10.00 p.m. on 12.01.2001 in the occurrence place put-forth by the prosecution. Based on Ex.P-1 report given by P.W.1, a case came to be registered and after the inquest made by P.W.16, the investigator, the body was subjected to postmortem by P.W.9, the doctor and Ex.P-7 is the postmortem certificate issued by him, wherein he has opined that the deceased died out of shock and haemorrhage due to the injuries sustained. Thus, the prosecution case proved that David died out of homicidal violence. Further, this fact was never questioned by the accused at any stage of the proceedings and hence, without any impediment, it could be recorded so.

In order to substantiate its case that it was accused No. 4, who attacked the deceased with M.O.1 aruval and caused his instantaneous death and in that course P.W.1 was also attacked by accused No. 2 with M.O.2 cycle chain, the prosecution relied on the evidence of P.Ws.1 to 5. It is true that all the five witnesses are closely related inter-se and also to the deceased. It is well settled proposition of law that merely because in a given case where the eye-witnesses to the occurrence are close relatives of the deceased, their evidence need not be discarded on the ground of relationship but before accepting their evidence, the Court has to apply the test of careful scrutiny. In the instant case, despite the application of the said test, the lower court has clearly marshalled the evidence and after considering the same has accepted the evidence of P.Ws.1 and 5, since their evidence inspired the confidence of the Court. This Court has to necessarily agree with the trial court since their evidence, marshalled and considered, has inspired the confidence of the Court. It is true that there are some discrepancies among their evidence but those discrepancies are minor most which, In the opinion of the Court, do not affect the prosecution case or its fabric. Now coming to the medical evidence, it stood in full corroboration to the ocular testimony.

Yet another circumstance in favour of the prosecution is recovery of M.O.1 aruval from accused No. 4 and M.O.2 cycle chain from accused No. 2, pursuant to their confessional statements and the evidence adduced in that respect remained unshaken and thus this is also another circumstance pointing to the nexus of the crime with accused Nos. 4 and accused No. 2. Thus insofar as accused No. 4 is concerned, the prosecution has proved that it was he who attacked the deceased with M.O.1 aruval and caused his instantaneous death and the prosecution has proved this charge beyond reasonable doubt and the Court is not able to see any reason to disturb that part of the finding of the lower court. Insofar as accused No. 2 is concerned, the prosecution has proved that it was he who caused injuries on P.W.1 with M.O.2 cycle chain and there is no reason to interfere with the said finding of the trial court.

Insofar as the second line of contention put-forth by the learned Counsel for the appellants is concerned, the Court is able to see sufficient force in the said contention. Admittedly, pursuant to the accusation made against the deceased and others, a case came to be registered and they were taken to judicial custody and the deceased came out on bail on 12.01.2001, the occurrence day, and after taking his dinner, the deceased came out of his house and went on abusing the accused. Further, it is also the admitted fact that accused Nos. 1 to 4 are brothers and accused No. 5 is the wife of accused No. 1 and their house is situated in the neighbourhood. After hearing the abusing words of the deceased, all the accused went to that place and made an attempt to stop the deceased from abusing them but, the deceased did not stop his act and went on abusing the accused and when they were not able to hear the same, naturally, they got provoked and at that time accused No. 4 attacked the deceased with aruval and thus the act of accused No. 4 was neither deliberate one nor intentional but it was only due to suden provocation impelled by the deceased, as could be evident from the available materials. Under such circumstances, the act of accused No. 4 will not attract the penal provision of murder but it would only amount to culpable homicide not amounting to murder and, in the considered opinion the Court, the same would fall u/s 304(i) IPC and imposing a punishment of seven years rigorous imprisonment would meet the ends of justice and therefore the conviction and sentence imposed on accused No. 4 u/s 302 IPC has got to be modified. Insofar as the conviction of accused No. 2 u/s 323 is concerned, the evidence of P.W.1, who is an injured witness, coupled with the medical evidence in the form Ex.P-8, the Accident Register issued to him, would suffice to sustain the finding of the lower court and it does not require any interference by this Court.

Accordingly, the conviction of accused No. 4 u/s 302 IPC is modified into one u/s 304(i) IPC and he is sentenced to undergo seven years rigorous imprisonment in the place of life sentence imposed u/s 302 IPC. The fine amount imposed u/s 302 IPC shall stand as the fine amount imposed u/s 304(i) IPC. The sentence already undergone by accused No. 4/appellant No. 2 shall be given set off.

With the above modification in conviction and sentence in respect accused No. 4/appellant No. 2, the appeal stands dismissed.