Periya Sannasi vs State

M. Chockalingam, J.—Challenge is made to a judgment of the Principal Sessions Division, Tirunelveli, made in S.C. No. 298 of 2008 whereby the sole accused/appellant stood charged under Sections 302 and 506(ii) of IPC, tried, found guilty as per the charges and awarded life imprisonment along with a fine of Rs. 5000/- and default sentence u/s 302 IPC and two years Rigorous Imprisonment u/s 506(ii) of IPC.

Necessary facts for the disposal of this appeal can be stated as follows:

(a) P.Ws.1 and 2 are the residents of Sivagiri Kumarapuram. P.W.1 is the son of the deceased Chinna Sannasi. P.W.3 is the wife of the deceased. The accused is the brother of the deceased. They owned 3 1/2 acres of land at Shanmuganeri. The lands were situated adjacent to each other. There was a common well. The accused has to take water to his land which is situated, through the land of the deceased. At one point of time, the deceased damaged the water course, and thus there was disruption of water flow. The same was reported by the accused to the Secretary of the Community, P.W.3, who in turn enquired into the matter and to whom the deceased assured that he would set it right after the harvest was over.

(b) On 3.3.2008 at about 2.00 P.M., when P.Ws.1 and 2 and the deceased were doing the agricultural operation in the field, the accused came over there and asked the deceased to set right the channel to which the deceased gave an evasive reply, and there was a wordy altercation. Immediately the accused took an aruval from his waist and attacked the deceased on different parts of the body. When P.Ws.1 and 2 went to the rescue, they were criminally intimidated by the accused. Thereafter, the victim succumbed to the injuries. Then the accused fled away from the place of occurrence.

(c) P.W.1 rushed to the respondent police station at about 8.45 P.M. and gave Ex.P1, the report, to P.W.8, the Sub Inspector of Police, who was on duty at that time. On the strength of Ex.P1, a case came to be registered in Crime No. 87 of 2008 u/s 302 of IPC. The printed FIR, Ex.P9, was despatched to the Judicial Magistrate, Tenkasi.

(d) On receipt of the copy of the FIR, P.W.13, the Inspector of Police of that Circle, took up investigation, proceeded to the spot, made an inspection in the presence of witnesses and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P17. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P18, the inquest report. The dead body and the place of occurrence were photographed through P.W.12, the Photographer. The photos and the C.D. are marked as M.O.11 series and M.O.12 respectively. Then, the dead body was sent to the Government Hospital for the purpose of autopsy.

(e) On receipt of the requisition, P.W.5, the Assistant Surgeon, attached to the Government Hospital, Sivagiri, conducted autopsy on the dead body of Chinna Sannasi and has issued a postmortem certificate Ex.P5, with his opinion that the deceased would appear to have died of haemorrhage and shock due to the injuries sustained.

(f) Pending investigation, the accused was arrested on 4.3.2008, when he came forward to give a confessional statement. The same was recorded in the presence of witnesses. The admissible part is marked as Ex.P7. Following the same, he also produced M.O.1, aruval, M.O.7, bloodstained lungi, and M.O.8, bloodstained shirt. All were recovered under a cover of mahazar. They were all sent to Court. The accused was sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Sciences Department on a requisition given by the Investigating Officer through the concerned Court. Ex.P15 is the Chemical Analyst''s report, and Ex.P16 is the Serologist''s report. On completion of the investigation, the Investigator filed the final report.

The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 13 witnesses and also relied on 18 exhibits and 12 material objects. On completion of the 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. 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 punishment as referred to above. Hence this appeal at the instance of the appellants.

Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr. K. Chellapandiyan would submit that in the instant case, the prosecution has examined P.Ws.1 and 2 as eyewitnesses; that they could not have been in the place of occurrence at all; that the occurrence, according to the prosecution, has taken place at about 5.15 P.M.; that the police station is situate within 2 kilometres from the place of occurrence; but the report was given at about 8.45 P.M., and thus there was a delay of 3 1/2 hours; that even from the evidence, it would be quite clear that they have not even taken any steps to save him or immediately take him to the hospital to save him; but they have gone to the village leaving the dead body, which was quite unnatural; that even from the village, they went to the police station and that too after 3 1/2 hours; that this would clearly speak of the fact that P.Ws.1 and 2 could not have been in the place of occurrence at all; that further, in the instant case, even the FIR which was recorded, reached the Court with delay; and that the same has not been explained by the prosecution.

Added further the learned Senior Counsel that in the instant case, as far as the accused was concerned, some injuries were noticed on him when he was arrested; but they were not actually mentioned in the arrest report; that he was produced before P.W.6, the Doctor; that the name of P.W.6, the Doctor, is not mentioned in the list of witnesses; but an additional list was filed at the time of trial; that the trial Court has allowed the same, and he has been examined; that the prosecution has relied on the contents of the documents and the trial Court has also accepted the same; that this would clearly indicate that all the documents have come into existence and the witness has also been included in order to strengthen the prosecution case; that as far as the arrest and recovery were concerned, these are all documents prepared to suit the prosecution case; and that all put together would clearly indicate that the prosecution has miserably failed to prove its case.

The learned Senior Counsel in his second line of argument would urge that even assuming that such an occurrence has taken place, the act of the accused would not in any way attract the penal provision of murder; that even P.W.1 has well admitted that at the time of occurrence, there was a wordy altercation between the accused and the deceased; that apart from that, even the explanation given by the accused to the Doctor P.W.6, what is found in the documents, would clearly indicate that it was the deceased who made an attempt to attack him; that under the circumstances, in order to prevent him from the situation and to save himself, he has acted so, and hence the act of the accused cannot but be a one considered to be a culpable homicide not amounting to murder and this legal position has got to be considered by the Court in the factual matrix placed by the prosecution even assuming they are true.

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 Chinna Sannasi the brother of the accused, was done to death in an incident that had taken place at 5.15 P.M. on 3.3.2008, at the place as put forth by the prosecution. Following the registration of the case on a complaint given by P.W.1, the investigation was taken up by P.W.13, the Inspector of Police, who after conduct of the inquest, sent the dead body to the Government Hospital for the purpose of autopsy. P.W.5, the Doctor, who conducted postmortem, has given his opinion as a witness before the Court and also through the contents of the postmortem certificate that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. The fact that the death was due to homicidal violence was never disputed by the appellant before the trial Court. Therefore, the trial Court was perfectly correct in recording so.

In order to substantiate the charges levelled against the appellant/accused, the prosecution has marched two witnesses as eyewitnesses namely P.Ws.1 and 2. It is true that P.W.1 is the son and P.W.2 is the wife of the deceased. Trite law it is that merely because of the relationship, the evidence of the witnesses cannot be discarded; but, the Court, before acceptance, must apply the test of careful scrutiny. In the instant case, P.Ws.1 and 2 have categorically stated that there was a quarrel between the deceased and the accused in the past; that there was a panchayat convened; that in that, they also assured that it would be set right after the harvest was over; that on the day i.e., 3.3.2008, when they were doing the agricultural operation, the accused came over there and made a demand again for setting right the water course; that the deceased gave an evasive answer, and immediately, the accused took the aruval from the waist and attacked him; that at that time, P.Ws.1 and 2 also went to his rescue, but they were also criminally intimidated, and under the circumstances, they ran away from the place of occurrence. Now, at this juncture, the contention put forth by the learned Senior Counsel for the appellant that P.Ws.1 and 2 did not take any steps to give him treatment does not deserve consideration for the simple reason that both the witnesses have clearly spoken to the fact that immediately he died at the spot. In such circumstances, any medical treatment, at that juncture, was unwarranted. The further contention that they did not go to the rescue cannot be accepted because P.Ws.1 and 2 have categorically deposed that at the time of occurrence, they tried to rescue; but they were intimidated by the accused. It is pertinent to point out that P.W.2 is a woman folk and P.W.1 is also 19 years old boy. Under the circumstances, they were under the grip of psychic fear. Therefore, this contention cannot be accepted.

It is true that the occurrence has taken place at about 5.15 P.M., and the complaint was given at 8.45 P.M. Now, at this juncture, the evidence of P.Ws.1 and 2 would indicate that they immediately from the place of occurrence went to their village situated 2 kilometres away, and informed the relatives, and thereafter they went to the police station, and in that process there was a delay of 31/2 hours that had taken place. Thus, this Court is unable to appreciate the contention that there was any delay.

Added further, the evidence of P.Ws.1 and 2 stood fully corroborated by the medical evidence. In this regard, the contentions put forth by the learned Senior Counsel for the appellant do not carry any merit whatsoever. Added circumstance in favour of the prosecution what is noticed by the Court, is actually the contents in Ex.P6, the accident register copy, issued by P.W.6, the Doctor. According to the Investigator, the accused was arrested on 4.3.2008, and he was taken before P.W.6, the Doctor, to whom he gave a statement that the injuries were sustained by him at the place and time as put forth by the prosecution. It is also further noted in Ex.P6 that the occurrence has taken place when one was assaulting the other where his younger brother was killed at the spot, and thus the relevant facts as to the place of occurrence and the time of occurrence in which the accused was also involved and that the party who was assaulted was also his younger brother all are found in the document. Now the contention put forth by the learned Senior Counsel for the appellant that this document namely Ex.P6, the accident register copy, which was recorded by P.W.6, has come into existence later to suit the prosecution case and also at the instance of the Investigator cannot be accepted. The learned Senior Counsel laid much emphasis that the name of P.W.6, the Doctor, was not mentioned in the list of witnesses, but it was later introduced at the time of trial by filing an application by the prosecution, and the same was also allowed by the Court. But, this, in the considered opinion of the Court, cannot be a reason to reject the testimony of P.W.6, a Medical Officer, attached to the Government Hospital. It is not in controversy that at the time of arrest, along with the arrest memo, the accused was taken to the hospital on 4.3.2008, and medically examined by P.W.6. So long as these facts are not disputed, the contents what was given by the accused as recorded by P.W.6 and as found in Ex.P6 document, and also its correctness cannot be doubted. Now the evidence of P.W.6 has got to be accepted. Thus it would be quite clear that the prosecution has brought home suffice evidence to indicate that it was the accused who attacked his brother and caused his death instantaneously.

As far as the second line of argument is concerned, this Court is able to see force in the contention put forth by the learned Senior Counsel for the appellant. The occurrence has taken place at about 5.15 P.M. on 3.3.2008. P.W.1 has categorically admitted that pursuant to the damage of the water course, the accused reported the matter to the Community Secretary, P.W.3; that there was a panchayat; that on the date of occurrence also, he was making a demand to which the deceased was giving an evasive answer; that at that time, there was a wordy altercation which fact is well admitted by P.W.1; and that in that altercation, the occurrence has taken place. Apart from that, the accused also sustained some injuries which are noted in the accident register copy. P.W.6 has also given evidence to that effect. But, the prosecution is unable to explain the same. It is true that in all the cases, the prosecution is not duty bound to explain the injuries sustained by the accused. But, in cases where the injuries are simple or superficial, this rule cannot be applied. The Court must look into the circumstances attendant in each case. In the case on hand, the injuries are sustained by him in the course of the very same transaction, and the prosecution had no explanation to offer. P.Ws.1 and 2 who have actually seen the occurrence, have not spoken anything about the same. It would clearly indicate that not only there was a wordy altercation, but also one was about to attack the other. Even assuming that the deceased assaulted or attacked the accused, it can be stated that the accused has exceeded the limit by way of self defence and caused the death of the other man namely the victim. Under the circumstances, the act of the accused cannot be said to be intentional or premeditated, and it cannot be termed as murder, but it would be culpable homicide not amounting to murder. Therefore, the act of the accused would attract Section 304 (Part I) of IPC and awarding a punishment of seven years Rigorous Imprisonment would meet the ends of justice.

Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court on the appellant/accused u/s 302 of IPC, are set aside, and instead, he is convicted u/s 304 (Part I) of IPC and is directed to suffer seven years Rigorous Imprisonment. The fine imposed by the trial Court, will hold good. The sentence already undergone by him shall be given set off. The conviction and sentence imposed by the trial Court on him u/s 506(ii) of I.P.C. are confirmed. Both the sentences are to run concurrently.

With the above modification in conviction and sentence, this criminal appeal is disposed of.