Paramasivam and Kamuthai vs State

R. Subbiah, J.—The appellants herein were the accused 1 and 2 in S.C. No. 344/2000 on the file of the II Additional Sessions Court, Madurai on the charges levelled against them that on 2.3.2000 at about 1.30 PM in Thirumalapuram village within the jurisdcition of Bodi Town Police Station, due to a quarrel among the ladies(PW 2 and A2), in taking water from the water tap for domestic purposes, which ultimately culminated to an acrimonious quarrel between the ladies and during the quarrel A-2 caught hold of the hands of the deceased Jawahar on his back side and thereby facilitated A-1 to stab the deceased with a knife on the right side of his chest and thereby both the accused caused the death of the deceased Jawahar punishable u/s 302 read with Section 34 IPC. The trial of the case was held against both the accused before the Additional Sessions Judge for the charge framed against them.

In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 14 and marked Exs.P.1 to P.11 and produced M.Os.1 to 5. By judgment dated 17.10.2001, the learned trial Judge, found both the accused guilty u/s 302 read with 34 IPC and convicted and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 100/- each, in default to undergo simple imprisonment for one month.

3.The sum and substance of the case of the prosecution is as follows:

The Appellants 1 and 2 are husband and wife respectively. P.W.2 is the mother in law of P.W.1. On 01.03.2000 at about 07.00 p.m. there was a wordy quarrel between P.W.2 and A-2 (wife of A-1) with regard to taking of water for using domestic purpose and at that time, P.W.1 intervened and separated them. Next day morning on 02.03.2000, A-2 came with wet cloths after taking bath nearer to the house of P.W.2 and shouted that the family of P.W.2 should be doomed to extinction. Then A-2 proceeded towards the Muthumariamman koil which is situated 10 feet away from the house of A-2 and cursed the family of P.W.2 by spitting and taunting. Subsequently, on the same day morning by 11.00 a.m., when P.W.1 was resting on the shadow of Muthumariamman koil along with one Murugan, once again A-2 came there and was explaining about the quarrel that took place on the previous day between her and P.W.2 to the said Murugan. At that time, P.W.2 came out of the house. On seeing her A-2 once again shouted against P.W.2 stating that all the rowdy activities of P.W.2 would not work out with her and then they indulged in quarrel. When the quarrel was going on, A-1 husband of A-2 came to the scene of occurrence. On seeing A-1, A-2 shouted at him saying that all the problems that she was facing were only due to him. On hearing the provocative words uttered by A-2, A-1 got infuriated and caught hold of the hands of P.W.2 and pushed her down. At that time, the deceased Jawahar also came to the place of occurrence and intervened in the quarrel along with P.W.1 and attempted to stop the same. On this act of the deceased, A-1 got further aggravated and shouted at the deceased and P.W.1 that why should they come in support of P.W.2. Thereafter, A-1 rushed to his house and brought a knife. On seeing this, the deceased Jawahar once again pleaded with A-1 not do any harm to P.W.2. Immediately, A-2 caught hold of both the hands of deceased Jawahar on his back side and A-1 stabbed on his right flank shouting at him "Are you a big shot". After stabbing the deceased, A-1 ran away from the place of occurrence. The deceased became unconscious. Thereafter, P.W.1, P.W.4 and P.W.6 took him in an Auto to Bodi Government Hospital where the deceased was declared dead by P.W.10, Medical Officer. Thereafter, P.W.1 went to the Bodi Town Police Station at 2.15 p.m and lodged a complaint Ex.P.1 to P.W.13, Sub Inspector of Police. Based on the complaint, P.W.13 registered a case in crime No. 116/2000 for the offence punishable u/s 302 IPC and forwarded the same to the Court and higher officials in the Department through P.W.9, Head Constable. Ex.P.9 is the copy of the First Information Report. P.W.9 handed over the same to the Judicial Magistrate by 08.00 p.m., on the same day.

P.W.14, the Investigating Officer, on receipt of the First Information Report took up the investigation and proceeded to the Government Hospital and conducted inquest over the dead body of the deceased between 2.40 p.m. and 4.00 p.m in the presence of panchayatars and recorded the statement of P.W.2. Ex.P.10 is the inquest report and thereafter, sent the body of the deceased for post mortem through P.W.11, head constable.

P.W.10, who on receipt of the requisition given by the Investigating Officer, conducted autopsy on 02.03.2000 at 4.10 p.m. and issued the Post-mortem Certificate Ex.P.4, wherein he noted the following:-

External Injury:1) A stab injury eliptical in shape 3cm x 2cm; 7cm below the right side nippe in between the 7th and 8th ribs and middle of the right side chest. On probing the probe entered into the thorasic cavity upto 7 cms. No other injuries.

Internal examination: Hyoid bone intact. No fracture of clavicle. No fracture of ribs. Heart: A punctured would 3 cm x 1 cm in the Right vertical lateral wall wound found gaped. 600 ml of blood found in the thoracic cavity. Lungs: congested: Liver Congested. Stomach: 100 ml of digested food particles seen. Intestines: digested food particles seen. Kidneys: Congested Bladder: Empty. Skull. No fracture. Brain: Congested. Spinal Cord: Intact.

Further, he opined that the deceased appeared to have died of hyporolia shock due to injury to vital organ (Heart) 3-5 hours prior to Post Mortem examination.

P.W.14, Investigating Officer on 02.03.2000, proceeded to the scene of occurrence and prepared Observation Mahazar and Rough Sketch Exs.P.2 and P.11 respectively and recovered bloodstained knife, bloodstained earth and sample earth M.Os.1 to 3 in the presence of P.W.8, Village Administrative Officer and recorded the statement of the prosecution witnesses. On the same day, P.W.14, arrested the accused at 11.00 P.M and recorded their statements. Thereafter, P.W.14, sent a requisition Ex.P.5 to send the M.Os. to chemical analyst and serologist reports and the reports were subsequently received under Exs.P.7 and 8.

P.W.14, on conclusion of the investigation laid the final report u/s 302 read with 34 IPC on 29.05.2000 as against both the accused.

The learned trial Judge, after analyzing the oral and documentary evidence placed before him during the course of the trial, questioned the accused u/s 313 Cr.P.C. and the accused denied their complicity with the commission of the offence and pleaded not guilty.

The trial Judge, after analyzing both the oral and documentary evidence and hearing the submissions made by both the parties found both the accused guilty of the offence punishable u/s 302 read with 34 I.P.C convicted and sentenced them as stated supra. Aggrieved over the conviction and sentence, the appellants have preferred the present appeal before this Court.

Learned Counsel for the appellants contended that there are lot of contradictions in the evidence of prosecution witnesses and those contradictions would prove that the occurrence could not have happened in the manner put forth by the prosecution. In support of the said contentions, learned Counsel for the appellants took this Court through the evidence and documents and submitted as follows:

a) P.W.1 in his evidence deposed that he had gone to the police station from the hospital and lodged the complaint to P.W.13 in writing. Whereas P.W.2, mother-in- law of P.W.1 deposed that she went along with P.W.1 straight away to the police station from the place of occurrence and in her cross examination had narrated the incident that the complaint was drafted by the police and the same was signed by her and P.W.1.

b) Further, in the First Information Report lodged by P.W.1, there is no whisper about as to when the deceased had arrived at the scene of occurrence, while A-2 was shouting at P.W.2.

c) P.W.1 and P.W.6 have categorically stated in their evidence that the deceased was brought to the hospital and he was administered an injection which is denied by P.W.10, (Medical Officer)

d) Though, P.Ws.3 and 5 adduced evidence by supporting the case of the prosecution, their presence at the place of occurrence were not spoken by P.Ws.1 and 2.

e) In the evidence of P.W.5, it is stated that the deceased had dropped the knife at the scene of occurrence whereas P.W.3 would state in his evidence that the accused had taken the knife along with him after the occurrence and P.Ws.2,4 and 6 did not speak anything about this aspect.

f) P.Ws.1,2,3 and 5 did not identify the weapon used in the offence when they were in the witness box.

g) The father in law of the deceased (P.W.4) would state in his evidence that P.Ws.1 and 2 had accompanied the deceased to the hospital and stated that within half an hour, the police had arrived at the scene of occurrence. Whereas the Investigating Officer, P.W.14 would state in his evidence that after the complaint was lodged to P.W.13 by P.W.1 he took up the investigation and proceeded to the scene of occurrence only at 5.00 p.m.

h) P.W.5 would state that P.Ws.1 and 6 had accompanied the deceased to the Hospital whereas P.W.6 in his evidence stated that P.Ws.1 and 4 and he had gone in an auto.

i) It is the case of the prosecution that M.O.1, knife was recovered from the open space and when that being so, the recovery of blood stained cement flooring and non stained cement flooring from the scene of occurrence raises a grave doubt as to whether the occurrence could have taken place in the manner as put forth by the prosecution.

j) P.W.10, Post Mortem Doctor in his evidence stated that he had commenced the Post Mortem at 4.10 pm., but as per the evidence of P.W.11, he had reached the Hospital only at 05.00 p.m. and handed over the body for autopsy.

k) P.W.13, Sub Inspector of Police, had stated in his evidence that he had received the death intimation from the hospital but the same was not referred to in the First Information Report, Ex.P.9. Similarly, the report about the recovery of M.O.1 bloodstained knife is not conclusively proved.

l) P.Ws.4 and 6 have stated in their evidence that they came to the scene of occurrence only after the incident had taken place.

The learned defence Counsel, in addition to the above submissions, pleaded an alternative argument that the offence, in the back ground of the motive, leading to sudden provocation would become punishable u/s 304(1) of I.P.C. but not u/s 302, I.P.C and submitted that it is the evidence of the prosecution witnesses that at the time of occurrence there was a wordy quarrel between P.W.2 and A-2 and the deceased who came and intercepted between them to stop the quarrel is said to have been murdered. Further, it is the case of the prosecution that A-1 caught hold of the hands of the deceased on his back and only one blow with knife on the right chest of the deceased is said to have been given by A-1. Hence, no intention could be attributed to the first accused for committing the murder of the deceased and under such a situation, both the accused would be guilty of committing of an offence only u/s 304 Part I IPC. In this regard, learned Counsel appearing for the appellants relied upon a judgment reported in Chowa Mandal and Another Vs. State of Bihar (Now Jharkhand), . In that case, the accused who was aggravated by unwanted questioning by the deceased gave a single lathi blow on the head of the deceased. On the facts of the said case, it has been held that the incident in question occurred only on the spur of the moment without any intention of causing death or of causing such injury as they knew that the injury was likely to cause death. Thus, it has been held that in that case that the offence would fall u/s 326 read with Section 34 IPC and not u/s 304 read with Section 34 IPC.

Thus, learned Counsel for the appellants vehemently contended that the infirmities found in the evidence of the prosecution would go to show that the prosecution witnesses might not have been present at the place of occurrence and the occurrence would not have happened in the manner as put forth by the prosecution. Under such circumstances, it could be easily inferred that the prosecution has miserably failed to establish its case beyond reasonable doubt and accordingly, the appeal may be allowed or in case, and if this Court does not agree with the submissions, the alternative submissions of the appellants may be accepted and accordingly sentenced by modifying the offence.

Per contra, the learned Additional Public Prosecutor submits that the motive part of the prosecution case has been well established through the evidence of P.Ws.1 and 2 and other eye witnesses who had been witnessing the quarrel between P.W.2 and A-2. When the evidence of witnesses is consistent about the sequence of events, their evidence cannot be simply brushed aside on the basis of the minor contradictions and omissions. In fact, P.W.13 clearly stated in his evidence that he had received a written complaint from P.W.1. Under such circumstances, no weightage can be given to the evidence of P.W.2 that P.W.1 had narrated the incident and the complaint was drafted by the police. Similarly, the presence of the deceased is also clearly spoken by P.W.1 in his evidence at the place of occurrence. Therefore, it is incorrect to state that the arrival of the deceased was not stated by P.W.1 in the First Information Report. P.W.1 clearly submitted in his evidence that the deceased arrived at the scene of occurrence after returning from his business. Therefore, non mentioning of the arrival of the deceased to the place of occurrence in the First Information Report, does not assume any importance. Similarly P.W.9 had stated in his evidence, that he had received First Information Report by 04.00 p.m. then proceeded to Bodi Judicial Magistrate and found that the Judicial Magistrate was on leave and thereafter, he proceeded to Uthamapalayam and handed over the same to the Judicial Magistrate, Uthamapalayam at 8.00 p.m., Therefore, even the delay in forwarding the First Information Report is properly explained by the prosecution. Though, P.Ws.1, 2, 3 and 5 were not able to identify the knife that would not vitiate the case of the prosecution because the said contradiction pointed out by the learned Counsel for the appellants is very minor in nature which could be construed as a human error and which could happen in normal course when they adduce evidence after a long period and unless the contradictions are very grave in nature, no weightage can be given to these minor contradictions especially in the circumstances when the evidence of prosecution witnesses is cogent and convincing in all other aspects coupled with the documentary evidence namely, Post Mortem Certificate and medical evidence which would undoubtedly go to prove that the prosecution has proved the case beyond all reasonable doubt. Therefore, the appeal has to be dismissed.

We have perused the materials on record and the submissions advanced by both the sides.

This is a case of a single murder, in which the husband and wife are the accused. The prosecution has examined P.W.1, P.W.2, P.W.4 and P.W.6 as eye-witnesses of whom PW-1 is PW-2''s son-in-law, the deceased was PW-3''s elder sister''s son and A2 is PW-3''s elder sister''s daughter and PW-1''s mother and deceased''s mother are sisters and the deceased is PW-4''s son-in-law. Thus, it is shown that they are all inter-se related. The learned Counsel for the appellants pointed out that several contradictions found in the evidence of the prosecution to show that the occurrence could not have taken place in the manner put forth by the prosecution and the prosecution witnesses could not have witnessed the occurrence. With regard to the lodging of First Information Report, P.W.13, has stated that PW 1 appeared before the police station and has given a written complaint on the basis of which a case was registered in Crime No. 116/2000 u/s 302 IPC but according to P.W.2, P.W.1 narrated the occurrence to P.W.13 and the same was written by P.W.13. But P.W.13, Sub Inspector of Police had stated that he had received the complaint in writing from P.W.1 in corroboration to the evidence of P.W.1. Similarly, learned Counsel for the appellants pointed out that in the First Information Report P.W.1 has not stated as to when the deceased had arrived at the scene of occurrence. But P.W.1 in his evidence clearly stated that after finishing the business and keeping the vessels in his house, the deceased came to the scene of occurrence and intercepted in the quarrel that was going on between P.W.2 and A-2 in order to stop the quarrel from further culminating into any other bitter end. This is corroborated by other prosecution witnesses. Under such circumstances, non mentioning of the arrival of the deceased at the place of occurrence, in the First Information Report does not assume any significance to reject the entire case of the prosecution. Similarly, the other contradictions pointed out by the learned Counsel for the appellants, between the evidence of P.W.10 and that of P.W.1 and P.W.6 with regard to administering injection to the deceased by P.W.10 when the victim was admitted in hospital and the other contradiction found between the evidence of P.W.5 and P.W.3 with regard to the recovery of M.O.1 knife. According to P.W.5, the knife was dropped at the place of occurrence whereas according to P.W.3, the knife was carried away by A-1 after the occurrence. We are of the opinion that they are all minor in nature which would not materially affect the case of the prosecution. The other submission made by the learned Counsel for the appellants is with regard to the identification of the knife M.O.1 used in the offence. We are of the opinion that though P.Ws.1, 2, 3 and 5 did not identify the knife when the same was shown to them, it should be borne in mind that all the witnesses are adducing evidence after 1 1/2 years from the date of occurrence. Under such circumstances the answer given by them that they were not able to identify the knife shown to them is most insignificant, particularly when all the prosecution witnesses consistently say that the deceased was stabbed by knife. Similarly, the other contradiction pointed out by the learned Counsel for the appellants is with regard to the time of arrival of police to the scene of occurrence and also other contradictions which are also very minor in nature as stated supra. In fine, we are of the opinion that the contradictions pointed out by the learned Counsel for the appellants in our opinion are only minor in nature and very insignificant which would not be sufficient to create a grave doubt in the minds of this Court with regard to the manner of occurrence put forth by the prosecution. Unless the appellants are able to create a strong suspicion in the minds of the Court that the manner of occurrence would not happen in the manner put forth by the prosecution and the witnesses might not have been present at the occurrence, it is not possible for this Court to accept the submissions of the appellant. On the other hand, the evidence of the prosecution witnesses along with medical evidence, strongly corroborate each other which would undoubtedly go to prove that the prosecution has proved the case beyond reasonable doubts. However with regard to the alternative submission made by the learned Counsel for the appellants, we are of the view that the judgment relied upon by the learned Counsel for the appellants, is not applicable to this case in its entirety. In that case, the deceased was assaulted with a lathi on a sudden quarrel.

In the present case, deceased and PW 1 came to the scene of occurrence when PW2 and A2 were grappling each other by holding their tufts and using inflammatory and intemperate language and rudely insulting each other in the offensive and filthy words. It was at that point of time A-1 who was possessed with the knife, on being deprived of the power of his self control by grave and sudden provocation and on being facilitated by A2 by holding the hands of the deceased behind, gave one stab on the spur of the moment which landed on the chest of the deceased resulting in his death. Therefore, we are of the view that both the appellants are liable to be convicted for the offence punishable u/s 304 Part I IPC read with Section 34 IPC.

In the result, we set aside the conviction u/s 302 I.P.C read with Section 34 IPC and the sentence of imprisonment for life awarded by the learned sessions Judge instead we convict both the Appellants/accused u/s 304(1) read with Section 34 I.P.C. and sentence each of them to undergo five years Rigorous Imprisonment. The period, if any, already undergone shall be given set off. The fine amount of Rs. 100/- with default Clause imposed by the court below is retained.

The criminal appeal is partly allowed subject to the above modification.

It is reported that the accused are on bail. The Sessions Judge concerned is directed to take steps to secure the presence of the accused who are on bail and commit them to prison to undergo the remaining period of sentence.