Narayanan @ Kottiyan vs State

M. Chockalingam, J.—Challenge is made to a judgment of the Sessions Division, Sivagangai, in S.C. No. 102 of 1998, dated 18.07.2007,

whereby the appellant stood charged, tried and found guilty u/s 302 IPC and awarded the punishment of life imprisonment and a fine of Rs.

5,000/- in default to undergo rigorous imprisonment for one year.

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

(i) P.Ws. 1 and 2 are the sons of the deceased and also the appellant/accused. During the relevant time, the accused and the deceased were not

living together and they were living apart due to a strained relationship. On the date of occurrence i.e. 27.11.1997, P.Ws.1 and 2 and their uncle

one Ramanathan were travelling in a bus to Ponnamaravathi for purchasing provisions. At that time, the deceased Jayam, the wife of the accused,

was also travelling along with them by sitting on the second seat from the back entrance of the bus. The accused/appellant got into the bus and was

standing in the back entrance. P.Ws.1 and 2 and their uncle, Ramanathan on hearing the distressing cry, immediately turned back and witnessed

her father accused/appellant stabbing the deceased Jayam indiscriminately, and when the bus was immediately stopped by the driver, P.W.3 also

witnessed the occurrence and immediately the accused/appellant got down and ran away from the place of occurrence.

ii) P.W.1 proceeded to the respondent police station and gave a complaint, Ex.P.1, to P.W.6, the Inspector of Police, who was on duty and he

registered a case in Crime No. 29 of 1997 u/s 302 of the Code. The printed first information report is Ex.P8. Printed FIR, Ex.P8 along with

Ex.P1, the complaint was despatched to the Court concerned and the same reached the Court concerned on that day evening.

iii) Then, P.W.6, the Inspector of Police of the circle concerned 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.P9. Besides that, he recovered material objects,

MOs2 to 6, Chappal, blood stained earth, Umbrella, Wire basket and ladies chappal, respectively in the presence of witnesses under a cover of

mahazar Ex.P3. The investigator conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and

prepared an inquest report, which was marked as Ex.P10.

iv) Following the same, the dead body of the deceased was sent to the Government Hospital, for the purpose of autopsy. On receipt of the

requisition made by the investigator Ex.P5, P.W.5 the Doctor, attached to the Government Hospital conducted autopsy on the dead body of the

deceased and issued Ex.P6, the postmortem certificate and the final opinion was reserved.

v) Thereafter, pending the investigation, the investigating officer came to know that the accused surrendered before the Judicial Magistrate,

Thiruppathur. Then, he made an application for police custody and the police custody was ordered. Pending custody, the accused/appellant was

interrogated and he came forward to give a confessional statement voluntarily in the presence of witnesses on 04.12.1997, and the same was

recorded. Pursuant to which, MO.1, the knife, was recovered under a cover of mahazar Ex.P4. The accused/appellant was sent for judicial

remand again. MO1, the knife, was subjected to chemical analysis by the Forensic Department. Following the same, the Chemical analyst''s

report, Ex.P7, and Serologist''s report, Ex.P15, were received by the Court.

vi) On completion of the investigation, the Investigating Officer has filed the final report. The case was committed to the court of sessions and

necessary charges were framed.

vii) In order to substantiate the charges, at the time of trial, the prosecution examined 6 witnesses and relied on 15 exhibits and 11 material objects.

On completion of the evidence on the side of the prosecution, the accused/appellant was questioned u/s 313 Cr.P.C. as to the incriminating

circumstances found in the evidence of prosecution witnesses. He denied them as false. Neither any defence witness was examined nor any

document was marked on the side of the defence.

viii) After hearing the arguments of the counsel and looking into the materials available, the trial court took the view that the prosecution has proved

the case beyond reasonable doubt and hence, found the accused/appellant 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 the arguments on behalf of the appellant, the learned Counsel would submit that the prosecution has not proved its case beyond

reasonable doubt. Pointing to the evidence of P.W.1, the learned Counsel would submit that the place of occurrence was not mentioned by him in

Ex.P1, complaint. According to the prosecution, the occurrence has taken place when the bus was just crossing Abdulla Motor Keni, but it is not

mentioned in Ex.P1, complaint. The investigating officer candidly admitted that P.W.1 has not stated the same in the 161 statement also and thus,

the place of occurrence is highly doubtful and P.W.1 has stated that immediately after the occurrence was over, he went to the village, informed to

the people and thereafter, went to the police station. Hence, it is also highly doubtful.

Added further, the learned Counsel that occurrence has taken place at 09.30 a.m. on 27.11.1997 and P.W.1 gave a report to the respondent

police station, which is situated within a few kilometers at 11.30 a.m. and the report reached the learned Judicial Magistrate, Thirupathur, which is

situated within 20 kilometers from the police station, at 03.30 p.m. and thus, in every stage there was a delay, which was also fatal to the

prosecution case. According to the evidence of P.Ws.1 and 2, the accused/appellant stabbed the deceased with a knife. If it is so, the injuries

could not have been caused as found in the postmortem certificate. Further, insofar as MO1, the knife, is concerned, the investigator would claim

that MO1, the knife, was recovered from the accused pursuant to the confessional statement given by him voluntarily and recorded by him, but the

confessional statement was not marked before the trial Court. Hence, the recovery of MO1, pursuant to the confessional statement will be of no

consequence and it should not be attached with any evidentiary value.

Added further, the learned Counsel that MO1 was the only material object sent for analysis, but the serologist''s report, Ex.P15, would indicate

that it is disintegrated. Though it is claimed by the investigator that all the material objects have been recovered from the place of occurrence, they

were not sent for analysis, but no explanation was forthcoming from the investigator. All would clearly show that there is reasonable doubt on the

prosecution story and thus, the accused/appellant is entitled for an acquittal in the hands of the Court.

Added further, the learned Counsel that the act of the accused was neither intentional nor premeditated. Even in the confessional statement, the

accused/appellant has stated that he has got into the bus, and he saw his wife sitting in the bus, and suddenly he got enraged and attacked her.

Added further the counsel that in the past there was a mediation for reunion, to which course she was not amenable and he was aggrieved over the

same. Under such circumstances, he acted so and it would not attract the penal provision of murder, but only culpable homicide not amounting to

murder. Hence, it has got to be considered by the Court.

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

It is not in controversy that the deceased was done to death in a running bus at 9.30 a.m. on 27.11.1997. Following the inquest made by

P.W.6, the investigating officer, who also registered the case, the dead body was subjected to postmortem by P.W.5, the doctor. The learned

Counsel would urge that the cause of death was not actually proved before the trial Court. This contention cannot be countenanced. It is true that

P.W.5, the doctor, when he gave the postmortem certificate under Ex.P6, has not given the final opinion. But when he gave evidence before the

trial Court, on the strength of the report, he has categorically stated that the deceased died due to shock and hemorrhage. At the time of cross-

examination, this opinion given by the postmortem doctor at the time of the trial on the strength of the postmortem certificate was never disputed by

way of a question or at least by way of a suggestion by the appellant. Under such circumstances, the contention now put forth by the appellant

before this Court cannot be countenanced and the prosecution has proved that she died out of homicidal violence. Hence the finding of the trial

Judge that she died out of homicidal violence has to be affirmed as correct.

In order to substantiate that it was the accused who stabbed her to death, the prosecution has examined two witnesses who are none else than

the sons of the accused. P.Ws.1 and 2 have categorically deposed in one voice that they got into the bus along with the mother. The mother was

actually sitting on the second seat from the back entrance of the bus and they were also in the front and suddenly they heard the distressing cry,

and when they looked back, their father, the accused/appellant, was stabbing the deceased with a knife by catching hold of her tuft. Despite cross-

examination, their evidence stood the test and remained unshaken. It is pertinent to point out that the accused/appellant is unable to show any

reason as to why they should go before a Court of law to give evidence against the father, the appellant.

It was P.W.1 who went to the police station immediately and gave the report. The occurrence has taken place at 09.30 a.m. According to

P.W.1, immediately he rushed to the village and informed the villagers and thereafter, he went to the police station which is situated 5 kms from the

place of occurrence, and the case was registered at 11.30 a.m. for murder. The comment made by the learned Counsel for the appellant that the

report reached the Court concerned at 3.35 p.m. and in that regard there was a delay cannot be accepted because the Court is situated at

Thiruppathur, 20 kilometers away from the place of the police station. Even assuming there was a delay of a few hours, it will not affect the case of

the prosecution, since the prosecution has other evidence available.

Further, the contention put forth by the learned Counsel that the place of occurrence has not been specifically stated in Ex.P1 or by P.W.1 in

his 161 statement, cannot be a reason to doubt the prosecution case. The occurrence has taken place in a running bus and the place nearby the

occurrence, Thuvar is also mentioned. Under such circumstances, it leaves no doubt in the mind of the Court because the conductor of the bus,

P.W.3 has also been examined and he has deposed that there was an occurrence in which a lady was stabbed to death. Insofar as MO1, the

knife, is concerned though claimed to have been recovered following the confessional statement, that piece of evidence cannot be accepted for the

simple reason that the confessional statement was not actually marked before the trial Court. Insofar as the other material objects are concerned,

they were not placed for analysis before the Forensic Department and it was an irregularity committed by the investigator. But while in a given case

like this where ocular testimony was placed before the Court and it was also corroborated by the medical evidence which satisfies the judicial

conscience that it was the accused who stabbed and caused the death of the lady, other part of the evidence need not be given much weight or

importance. Thus, the prosecution has brought home the guilt of the accused/appellant who stabbed her to death.

Insofar as the second line of contention that due to sudden provocation, the accused has acted so, the Court is unable to see anything which

could have provoked the accused. According to the counsel, he got into the bus, and when he found his wife, he got provoked suddenly and

stabbed her. But, the Court is of the opinion that it is only a self provocation and in a given case like this to take the case of murder to culpable

homicide, one of the explanations given u/s 300 must be available, but the provocation must be one which should have been made by the other

party namely the victim and not to be a self provocation as found in the instant case. The Court is unable to see which could have provoked the

accused/appellant and hence the act of the accused is one of murder as recorded by the trial Judge.

In the result, the appeal is dismissed and the conviction and sentence imposed on the appellant/accused by the trial Court are confirmed.