S. Sahayaraj @ Raja @ Sahayam vs The State

M. Chockalingam, J.—Challenge is made to the judgment of the Additional Sessions Division, Fast Tract Court, Periyakulam, dated 19.12.2008, made in S.C. No. 34/2008, whereby the appellant/sole accused stood charged u/s 323 and 302 IPC, tried and found guilty thereunder and imposed the punishment one year R.I. for the offence u/s 323 IPC and life imprisonment for the offence u/s 302 IPC, a fine of Rs. 5,000/-, in default to undergo six months simple imprisonment and both the sentences were ordered to run concurrently.

The short facts necessary for the disposal of these appeals can be stated as follows:

(a) P.W.1 Anthonimuthu is a resident of Kombai Village within the jurisdiction of the respondent police. The deceased Kanmani @ Kannimariyal is his brother Savarimuthu''s daughter and she was given in marriage to the accused Sahayaraj @ Raja @ Sahayam nine years prior to the date of occurrence. During the relevant time, the accused Sahayaraj, his wife Kanmani and their three children were living in a house belonging to P.W.6 Madasamy on the basis of ''Othi'' for a sum of Rs. 25,000/-.

(b) Since the elder brother of the accused died, his family members were living at Periyakulam and the accused wanted to shift his abode also to Periyakulam for which course of action the deceased Kanmani was not amenable and therefore they often used to quarrel with each other and P.W.1 and others pacified them on such occasions. The accused got back Rs. 17,000/-from the house owner and spent the same and when there was a dispute arose between the accused and the deceased, a panchayat was convened, wherein P.Ws.1, 5, 7 and 8 participated and pacified them.

(c) At 6.30 p.m. on 29.07.2007, again there was a quarrel between the accused and the deceased about shifting their abode to periyakulam and at that time P.W.1, his brother Savarimuthu and his wife went to the accused house and pacified them and returned to their house. On the same day, at about 7.30 p.m. in the night, P.W.3, Jeyamani, daughter of the spouses, came to the house of P.w.1 and informed that there going a quarrel between their parents and immediately P.W.1, his wife and his brother Savarimuthu rushed to the house of accused. On seeing the brother of P.W.1, the accused claimed that because of his conduct only his wife is refusing to come along with him to Periyakulam and saying so the accused kicked him and Savarimuthu fell to ground and sustained injuries on his elbow and knees. The accused also shouted at P.W.1 and went inside the house and beat the deceased, for which the deceased replied "even if I die, I will not come to Periyakulam and if you want to go, you go after depositing the balance othi amount of Rs. 8000/-in the name of children". Immediately, the accused took an Aruval (M.O.1) which was kept in the nearby box and cut the deceased on her neck indiscriminately and the deceased Kanmani fell on the mat which was lying on the floor. P.W.1 and others got frightened and kept themselves away and the accused ran away towards north with the weapon of crime. Thereafter, P.W.1 and his wife went near the deceased, lifted her and found Kanmani dead. At the time of occurrence, the children of the accused were also present. On hearing the noise, the neighbours also gathered there. Immediately, P.W.1 rushed to the respondent Police Station and gave a complaint, marked as Ex.P-1, to P.W.17, the Sub-Inspector of Police. P.W.17, based on Ex.P-1 complaint, registered a case in Crime No. 177/2007 u/s 302 IPC and prepared Ex.P-15, the First Information Report, despatched the same to the court and copies to the higher police officials for further action.

(d) On receipt of copy of Ex.P-15 FIR at 10.00 p.m. on 29.07.2007, P.W.18, the Inspector of Police, took up the investigation, rushed to the scene of occurrence at 10.30 p.m., made an observation and prepared Ex.P-2, the observation mahazar and also drew Ex.P-16, the rough sketch, in the presence of P.W.9, the Village Administrative Officer and another. He conducted inquest on the body of the deceased at 11.30 p.m. in the presence of panchayatdars and witnesses and prepared Ex.P-17, the Inquest Report. He enquired the witnesses and recorded their statements. He also caused the place of occurrence to be photographed through P.W.10, the Photographer, and M.O.6 (series) are the photographs. P.W.18 recovered M.O.2, the Mat, M.O.3, the Bloodstained Earth and M.O.4, the Sample Earth, from the place of occurrence under Ex.P-4 Mahazar, attested by witnesses. Thereafter, he sent the body of the deceased for postmortem through P.W.12, the Constable, with Ex.P-7, the requisition.

(e) P.W.13, the Doctor attached to Government Hospital at Uthamapalayam, conducted autopsy on the dead body of Kanmani @ Kannimariyal at about 11.00 a.m. on 30.07.2007. On completion of postmortem, P.W.13 issued Ex.P-8, the postmortem certificate, opining that the deceased would have died of shock and hemorrhage due to multiple injuries sustained, 15 to 17 hours prior to autopsy. After postmortem, P.W.12, the constable, recovered M.Os.7 to 14 from the body of the deceased and handed over the same to P.W.18, the Investigation Officer.

(f) P.W.14, another doctor attached to Uthamapalayam Government Hospital, examined one Savarimuthu, who came to the hospital for treatment along with police Memo. On examination, the injured told to P.W.14 that in an occurrence that took place at about 6.30 p.m. on 29.07.2007 near his residence he was kicked by a known person. P.W.14 found multiple abrasions over the right forearm, a small abrasion over the right knee and a small abrasion over the left knee and gave treatment to the injured. Ex.P-9 is the copy of the Accident Register issued by P.W.14 to the said Savarimuthu.

(g) Pending investigation, P.W.18, the Inspector of Police, arrested the accused on 30.07.2007 at 1.30 p.m. in the presence of P.W.9, the Village Administrative Officer and another and recorded the voluntary confessional statement given by him and pursuant to the admissible portion of his confessional statement, marked as Ex.P-4, the accused took and produced M.O.1, the Aruval and M.O.5, the bloodstained dhoti, and the same were recovered by P.W.18 under Ex.P-5 mahazar attested by the same witnesses. Thereafter, the accused was sent to judicial custody.

(h) On 06.08.2007, P.W.18 enquired P.W.13, the doctor who conducted autopsy on the body of the deceased and recorded his statement. He also examined P.W.14 and recorded his statement. P.W.18 gave Ex.P-11 requisition to the court for subjecting the material objects recovered in the case for chemical analysis, which resulted in two reports, namely Ex.P-13, the Chemical Examiner''s Report and Ex.P-14, the Serologist''s Report. P.W.18 completed the investigation on 08.10.2007 and filed the final report against the accused under Sections 323 and 302 IPC.

After committal proceedings, the case was taken on file by the Sessions Court in S.C. No. 34/2008 and necessary charges were framed. To prove the charges against the accused, the prosecution examined 18 witnesses as P.Ws.1 to 18 and marked 17 documents as Exs.P-1 to P-17 and produced M.Os.1 to 14. On completion of the evidence on the side of the prosecution, when the accused was questioned u/s 313 of the Code of Criminal Procedure about the incriminating circumstances found in the evidence of prosecution witnesses, he denied all of them as false. On the side of defence, neither oral evidence nor documental evidence was let it. The trial court, after hearing the parties, took the view that the prosecution has proved the charges against accused beyond reasonable doubt, found him guilty under both the charges, convicted him thereunder and awarded punishments as referred to earlier and hence this appeal at the instance of the appellant.

Advancing arguments on behalf of the appellants with all vehemence, the learned Counsel would submit that it is true that the prosecution has examined P.Ws.1 to 3 as eye-witnesses to the occurrence but, all these witnesses are close relatives of the deceased and apart from that, their evidence is discrepant and hence the same should have been rejected by the trial court. Learned Counsel further submitted that the medical evidence, which was projected by the prosecution through the postmortem doctor P.W.13, was not consistent with the ocular testimony. Added further the counsel, the prosecution examined P.W.14, the doctor, in respect of the injury said to have sustained by one Savarimuthu but, the said said Savrimuthu was not examined and under circumstances, even without the injured being examined, the trial court has found the appellant/accused guilty u/s 323 IPC and awarded the punishment which has got to be set aside.

Added further the learned Counsel, the arrest of accused and recovery of M.Os.1 and 5 from him, pursuant to the alleged confessional statement given by him were nothing but cooked up evidence in order to strengthen the prosecution case as it is thoroughly discrepant and therefore the same should have been rejected by the trial court and thus the prosecution has miserably failed to prove its case.

Learned Counsel, advancing his second line of argument, submitted that in the instant case the appellant/accused had justifiable reason to take his wife to Periyakulam to live there as his brother died leaving behind his wife and minor children and at the time of occurrence, when the appellant/accused made a similar request the deceased replied that even if she dies, she would not go over to periyakulam and this statement got provoked the accused and even after this, there is evidence to show that the quarrel was continuing between the accused and the deceased and only in that process the appellant attacked the deceased and thus his act is neither intentional nor there is any pre-meditation on the part of the appellant to do away his wife and, under such circumstances, this legal position has got to be considered and applied by this Court to the instant case.

The Court heard the learned Additional Public Prosecutor on all the submissions made by the counsel for the appellant and paid its anxious consideration to the submissions made on either side and perused the materials on record.

It is not in controversy that one Kanmani @ Kannimariyal, wife of the accused, was done to death in an incident that took place at 7.30 p.m. on 29.07.2007. Following the registration of a case, P.W.18, the Inspector of Police, took up the investigation. After conducting inquest, the dead body was subjected to postmortem by P.W.13, the Doctor, and after postmortem P.W.13 has issued Ex.P-8, the postmortem certificate, opining that the deceased died due to shock and haemorrhage due to multiple injuries sustained. From the above evidence, it is quite clear that Kanmani @ Kannimariyal died out of homicidal violence. Apart from that, the fact that the deceased died out of homicidal violence was never disputed by the appellant either before the trial Court or before this Court and hence the trial judge was perfectly right in recording so.

In order to substantiate the charges levelled against the appellant, the prosecution has marched P.Ws.1 to 3 eye-witnesses to the occurrence. At the outset, it must be stated that though the prosecution has examined P.W.14, the doctor, who gave treatment to one Savarimuthu, the said Savarimuthu, who is stated have sustained injuries in the same occurrence when the accused kicked him down, was not examined before the Court and in such circumstances, the Court is of the opinion that so long as the injured Savarimuthu was not examined, the judgment of conviction rendered by the trial court u/s 323 IPC cannot be sustained and it has got to be set aside.

Insofar as the charge of murder u/s 302 IPC is concerned, the Court is of the considered opinion that the prosecution had projected ample evidence before the trial Court. P.Ws.1, 2 and 3 are eyewitnesses to the occurrence. P.W.3 is the daughter of the spouses, aged about 9 years at the time of giving evidence. P.Ws.1 to 3 have, in one voice, stated that immediately upon being informed by P.W.3 and on hearing the sound, they rushed to the house nearby where the accused and the deceased were living and they saw the quarrel that was going between the spouses and in that process the accused cut indiscriminately on the neck of the deceased with an aruval and caused her instantaneous death. Immediately thereafter P.W.1 has gone to the place station and a complaint was given by him to P.W.17, the Sub-Inspector of Police, following which a case was registered by P.W.17, the Sub-Inspector of Police and the investigation was taken up by P.W.18, the Inspector of Police. P.W.18 has conducted inquest, recovered material objects from the scene of occurrence and subjected the dead body for postmortem. P.W.13, the doctor who conducted autopsy on the body of the deceased, has categorically opined that the deceased died due to the multiple injures sustained by her. This medical opinion canvassed by the prosecution is in full corroboration with the ocular testimony.

Yet another circumstance which was against the accused is his arrest and recovery of M.O.1, the weapon of crime and M.O.5, the bloodstained dhoti, following the voluntary confessional statement given by him. The evidence of witnesses examined therefore by the prosecution remained unshaken despite cross-examination in full. In such circumstances, the contention put-forward by the counsel for the appellant in this regard attacking that part of the evidence cannot be accepted by the Court and thus the prosecution has proved that it was the accused who attacked the deceased with aruval on her neck indiscriminately and caused her instantaneous death and the trial court is fully justified in recording a finding to that effect and there is nothing to disturb that part of the finding ny the trial court.

Insofar as the 2nd line of argument advanced by the learned Counsel for the appellant, the Court is able to see force in the contention put-forth by the learned Counsel. Even as per the evidence of P.Ws.1 to 3, who are the eye-witnesses to the occurrence, the spouses were quarrelling with each other on the issue of the accused demanding the deceased to go and stay at Periyakulam from Kombai as there were justifiable reason to go over there and live, to which course the deceased was not amenable. Further, on the date of occurrence at about 6.30 p.m. there was a quarrel between the spouses and P.Ws.1, 2, 4 and others pacified the spouses but the quarrel continued thereafter and when P.W.3 came and informed to P.W.1 about the continued quarrel, P.W.1 and P.W.2, along with P.W.3, went and saw the quarrel continuing even at that point of time and when the request made by the accused was turned down by the deceased saying ''even if she dies, she would not go over to Periyakulam'' and provoked by the same, the accused took M.O.1 aruval which was kept in the nearby box, attacked her and caused her death instantaneously. Under such circumstances, this act of the accused, as rightly put-forth by the learned Counsel for the appellant, is neither intentional nor premeditated. At the same time, though it is not a case of murder, it is culpable homicide not amounting to murder and the Court is of the considered opinion that the act of the accused would attract the penal provision u/s 304(i) IPC and awarding a punishment of 10 (ten) years rigorous imprisonment would meet the ends of justice and accordingly, the judgment of the trial court finding the accused guilty u/s 302 IPC and awarding the punishment of life imprisonment thereunder requires modification.

In the result,

(a) the judgment of trial court in so far as convicting the appellant u/s 323 IPC and sentencing him to undergo one year rigorous imprisonment thereunder is set aside and he is acquitted of the said charge.

(b) Insofar as the judgment of the trial court convicting the appellant u/s 302 IPC and sentencing to undergo life imprisonment, the same is set aside and instead the appellant/accused is convicted u/s 304(i) IPC and sentenced to undergo ten years rigorous imprisonment. The fine amount imposed u/s 302 IPC, with default clause, by the trial court is ordered to be treated as one imposed u/s 304(i) IPC. The period of imprisonment already undergone by the appellant/accused is directed to be given set-off under the modified sentence.

The criminal appeal is accordingly disposed of.