Rayappan vs State

M. Chockalingam, J.—The sole accused in a case of murder in S.C. No. 452 of 1999 on the file of Principal District Judge, Tuticorin, in which he stood charged for the offence u/s 302 IPC and found guilty as per the charges and awarded life imprisonment u/s 302 IPC and also to pay a fine of Rs. 100/-, in default to undergo rigorous imprisonment for one month, has brought forth this criminal appeal.

The short facts which are necessary for the disposal of this appeal can be stated thus:

a) PW1 is the wife of the deceased. The deceased was doing salt business. The accused/appellant was residing in the adjacent house on the west. Four or five years prior to the occurrence, there was an accusation made against the deceased that he entered the house of the accused and attempted to outrage the modesty of one of his daughters namely Balammal. There was a panchayat convened where he was fined. One year prior to the occurrence, the accused/appellant, said to have beat PW1 and a case came to be registered by the Alwarthirunagar Police Station and the case was also pending in proceedings.

(b) While the matter stood thus, on 20.09.1997 at about 7.30 am there was a wordy quarrel between PW1 and the deceased. The deceased and PW1 came out of the house and quarrelled with each other. At that time, the accused/appellant, who is standing in front of his house was under the impression that the deceased was abusing him. Being provoked by that, he went inside his house and took an Aruval and attempted to cut the deceased on his neck, but it was warded of by him and then he ran but the accused chased him and caused a cut on his legs, with the result, the deceased sustained bleeding injuries and thereafter, the accused ran away from the scene of occurrence. PW1, on witnessing the occurrence, took the deceased to Government hospital, Srivaikundam and from there he was shifted to High Ground Hospital, a private nursing home, where he declared dead on arrival. PW3, Dr. Subbiah, who was present at that time in the hospital issued Ex.P2, Accident Register copy wherein the injuries sustained by the deceased were mentioned. Accordingly, an intimation was also given by PW3 to the Srivaikundam Police Station

(c) PW1, wife of the deceased went to Alwarthirunagar Police Station at 11.30 am and gave a oral complaint, which was reduced into writing, which is Ex.P1. On the strength of the complaint, a case came to be registered by the respondent police against the appellant u/s 302 IPC. The copy of the First Information Report Ex.P18 was despatched to the Court.

(d) The Inspector of Police, PW15, on receipt of the FIR copy, took investigation, proceeded to the spot at 12.00 noon on the same day, made an inspection and prepared an observation mahazar, Ex.P7, rough sketch, Ex.P19 in the presence of the witnesses. He also conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatars and Ex.P20 is the inquest report. Then, he sent the dead body of the deceased to the Tirunelveli Medical Collgee at Palayamkottai to conduct autopsy along with a requisition

(e) P.W.3, the Assistant Surgeon attached to the Government Hospital, Srivaikundam, on receipt of the requisition, has conducted autopsy on the dead body of the deceased. He has issued Ex.P.6, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to heavy cut injury in the region of left leg.

(f) Pending investigation, the accused was arrested on the same day i.e., 20.09.1997 and he gave a confessional statement voluntarily, which was recorded in the presence of the witnesses, admissible portion of the said voluntary confession is Ex.P9. Pursuant to the confessional statement, the accused produced M.O.3, Aruval; M.O.5, blood stained full sleeve shift which were recovered in the presence of the witnesses under a cover of mahazar. The accused was sent for judicial remand. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and the M.Os recovered from the accused were subjected to chemical analysis by the Forensic Science Department, which resulted in Ex.P.13 the Chemical Analyst''s report and Ex.P14, Serologist report. After completion of the investigation, the final report was filed by the Investigating Officer.

The case was committed to the Court of sessions and necessary charges were framed against the accused on 18.10.1997. In order to substantiate the charges, the prosecution examined 15 witnesses and relied on 20 Exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 Cr.P.C as to the incriminating circumstances found in the evidence of prosecution witnesses, which he denied as false. No defence witness was examined, but only one document was marked on the side of the defence.

The trial court, on hearing the learned Counsel on either side and looking into the materials available, has found the accused/appellant guilty u/s 302 IPC and awarded life imprisonment and a fine of Rs. 100/-. Hence, this appeal has been brought forth by the accused/appellant.

Advancing his arguments on behalf of the appellant, the learned Counsel would submit that it is true that PW1 and PW2 are eye witnesses to the occurrence. A perusal of their testimony would clearly reveals that they are not only relatives to the deceased but also interested witnesses and there are discrepancies found in their evidence. Therefore, the trial court should have rejected their evidence in toto. Added further, the learned Counsel would submit that the recovery of weapon of crime pursuant to confession statement was nothing but subsequent introduction in order to strengthen the case of the prosecution. In the instant case, the prosecution has miserably failed to prove the guilt of the accused either by direct evidence or by circumstantial evidence. Added further, the learned Counsel for the appellant submits that even assuming that the accused had attacked the deceased with Aruval, it was due to sudden provocation and not with an intention to cause murder of the deceased. In the instant case, even as per the prosecution case, the accused attacked the deceased with an aruval on his legs, which are non-vital parts of the body. Apart from this, there was a wordy quarrel emanated between the deceased and PW1 and the accused under the impression that the deceased is scolding him, got provoked and took an aruval and caused a single cut injury on his legs which cannot be stated to be intentional or pre-planned and would not fall within the ambit of murder. All put together would go to show that the accused did not act with an intention to cause the murder of the deceased and the injuries were inflicted in the non-vital parts of the body. Added further, the accused was aged 60 at the time of the occurrence which was not considered by the trial court and prayed for setting aside the conviction and sentence imposed by the trial court.

Heard the learned Additional Public Prosecutor on the above contentions.

The court has paid its anxious consideration on the submissions made.

It is not a fact in controversy that the deceased and accused are neighbours. PW1 is the wife of the deceased. The deceased died out of homicidal violence, which was witnessed by PWs 1 and 2. Apart from direct evidence, in order to substantiate the case against the accused, the prosecution has examined the post-mortem Doctor, through whom the post-mortem certificate has been marked wherein it is mentioned that the deceased died due to heavy cut injury in the region of left leg. Thus, it can be concluded that the deceased died due to homicidal violence. Apart from that, the fact that the deceased died due to homicidal violence was never questioned by the appellant at any stage of the proceedings and hence, without any impediment, it can be recorded so.

In order to prove that it was the accused who attacked the deceased at the time of occurrence and he was taken to the private hospital where he was declared dead, the prosecution has brought forward direct evidence through PWs 1 and 2. They have clearly spoken about the occurrence in one voice. At the time of occurrence in the morning hours, there was a wordy quarrel between PW1 and the deceased following which PW1 came out of the house. The accused, who was standing in front of his house was of the view that the deceased was abusing him. Therefore, out of sudden provocation he attacked him. So far as the act of accused is concerned, the ocular testimony through PW1 and 2 was fully corroborated by the medical evidence. Yet another circumstance in the instant case connecting the nexus of the accused with the crime was the recovery of weapon of crime pursuant to the confession statement given by the accused. All put together would clearly reveal and indicate that the prosecution has proved the complicity of the offender in the crime. All the contention putforth by the counsel for the appellant noted above have got to be stated only for the purpose of rejection and accordingly rejected.

Coming to the question of the nature of the act of the accused, this Court is able to see sufficient force in the contentions putforth by the learned Counsel for the appellant. It is an admitted fact that there were criminal proceedings pending between the parties. On the date of occurrence, PW1 and the deceased had a wordy quarrel and there was exchange of words. The accused, who is his neighbour and standing in front of his house was under the impression that the deceased is abusing him. On that impression, he got provoked, took the Aruval and attacked him. Had it been the intention of the accused, he could not have attacked him in his legs and the fact that the appellant attacked the deceased on his legs would indicate that his intention was not to kill the deceased but to cause injuries. Apart from this, this Court is able to see that the attack was made not on a vital part but on a non-vital part. Thus, it would be quite clear that the act of the accused was neither intentional nor pre-meditated but it was due to sudden provocation. All put together, this Court is of the opinion that the act of the accused would not fall within the ambit of murder but would attract the penal provisions of Section 304 (II) IPC and awarding punishment of five years rigorous imprisonment would meet the ends of justice.

Accordingly, the conviction and sentence imposed by the trial court on the accused u/s 302 IPC are modified and instead the accused is convicted u/s 304 (II) IPC and sentenced to undergo rigorous imprisonment for a period of five years, however, the fine imposed by the trial court on the accused is confirmed. Consequently, the period of sentence already undergone by the accused is ordered to be given set off.

It is brought to the notice of this Court by the learned Counsel for the appellant that the accused is in jail from 2001 onwards. If it so, the authorities are directed to set him at liberty forthwith.

With the above modification in conviction and sentence, the criminal appeal is dismissed.