Samy vs The State

M. Chockalingam, J.—The sole accused in a case of murder, who stood charged u/s 302 IPC, tried and found guilty as per the charge of murder and awarded life imprisonment along with a fine of Rs. 1,000/- in default to undergo six months Rigorous Imprisonment by Judgement dated 25.9.2003 in S.C. No. 627 of 2001, has preferred this appeal challenging the same.

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

(a) PW.1 Subbammal is the wife of the deceased and they were residing in Thilagar Street, Krishnapuram of Kadayanallur within the jurisdiction of Kadayanallur Police Station. The accused was also belonging to the same place. The accused was living with his wife Parvathi.

(b) Prior to the date of occurrence, for about 15 days, the said Parvathi was found missing and the appellant/accused entertained a suspicion that it was the deceased who would have kidnapped her. Hence he bore a grudge on the deceased. On the date of occurrence i.e. on 17.2.2001 at about 7.00 p.m. PW.1 and her husband were there in a bus stop i.e. at Tenkasi Koolkadai, to board a bus, the accused came there, found the deceased and saying "you have kidnapped my wife, you pretend that you do not know any thing", took out a knife and stabbed him twice as a result of which he fell down. When PW.1 intervened, he also threatened her. The deceased met with an instantaneous death. The occurrence was witnessed by PW.1 and PW.2. PW.10 saw the accused/appellant running away from the place of occurrence with the weapon of crime.

(c) PW.1 went to Tenkasi Police Station and reported the occurrence to the Sub Inspector of Police PW.21, who reduced it into writing and the same was marked as Ex.P.1. On the basis of Ex.P.1, he registered a case in Crime No. 96/2001 under 302 IPC. Printed F.I.R is Ex.P.11, which was despatched to the Judicial Magistrate, Tenkasi.

(d) On receipt of the copy of the F.I.R, PW.25 took up further investigation. He went to the spot and made an inspection and prepared an Observation Mahazar Ex.P.7 and Rough Sketch Ex.P.18 in the presence of the witnesses and he made arrangements for taking photographs. PW.3 is the photographer. The photographs and negatives of the dead body of the deceased was marked as MO.4 (Series). He recovered the Material Objects available at the place of occurrence. He conducted inquest on the dead body of the deceased and prepared Inquest Report Ex.P.19. Following the same, the body was subjected to post-mortem by the Doctor (PW.17) attached to the Government Hospital, Tenkasi. He found injuries and he issued post-mortem Certificate Ex.P.3 wherein he opined that the deceased would appear to have died of injury to vital organ (Heart and Lungs), shock and heamorrhage from vital organs (Heart and Lungs).

(e) Thereafter, on 18.2.2001 at about 5.30 p.m., the accused was arrested in the presence of V.A.O. (PW.20) and other witnesses. The accused voluntarily gave his confessional statement and the admissible portion of which was marked as Ex.P.9, following which, he produced the knife MO.1 and the same was recovered under Ex.P.10 mahazar. On production of the Material Objects recovered from the accused pursuant to the confessional statement, they were subjected to chemical analysis. Ex.P.16 is the Chemical Analysis Report. Ex.P.17 is the Serological Report.

(f) On completion of the investigation, the Investigating Officer PW.25 filed a final report for the charge of murder.

Thereafter, the case was committed to the Court of Sessions. Necessary charge was framed. In order to substantiate its case, the prosecution has examined 25 witnesses, marked 20 Exhibits and 11 MOs.

On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 Cr.P.C in respect of the incriminating circumstances found in the evidence of the prosecution witnesses and the accused denied the charges as false. No defence witness was examined.

The trial Court, after considering the submissions made on both sides and after perusing the materials placed on record, and giving an opportunity to the accused to address his case, took the view that the prosecution has proved its case beyond reasonable doubt and found the accused/appellant guilty as per the charge of murder, the subject matter of challenge is before this Court.

Advancing the arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the prosecution rested its case on the evidence of PW.1 and 2 and also PW.10. There are a lot discrepancies in the evidence of eye witnesses. If carefully scrutinised, it will not stand the test and hence, the trial Court should have rejected the testimony. The medical evidence did not support the case of the prosecution. The recovery of weapon of the crime pursuant to the arrest and alleged confession were all nothing but subsequently planted by the prosecution to support its case. Thus, the prosecution did not place sufficient evidence or it cannot also be stated that the prosecution has proved its case beyond reasonable doubt.

Added further the learned Counsel that even assuming that the prosecution has proved the fact that it was the accused who stabbed the deceased to death, in the instant case, the act of the accused would not attract the penal provisions of murder. Even as per the accused, he was provoked by the fact that it was the deceased who had taken away his wife and on that provocation the accused had stabbed. Thus, in the instant case, the act of the accused was neither intentional nor pre-meditated in order to cause the death. Hence the penal provisions of murder cannot be attracted and hence it is only a case of culpable homicide not amounting to murder and this point has got to be considered by this Court.

Court heard the learned Addl.Public Prosecutor on the above contentions.

It is not in controversy that the deceased is the husband of PW.1 and the deceased was done to death but homicide. In the instant case, the prosecution has not only relied on the direct evidence of witnesses but also relined on the evidence of the Doctor PW.17, who conducted autopsy on the dead body and also relied on the post-mortem certificate Ex.P.3 issued by him and his categorical opinion is that the deceased would appear to have died 24 or 25 hours prior to autopsy. Apart from that, the appellant/ accused never questioned this fact at any stage of proceedings before the trial Court and hence, it has got to be recorded and recorded so.

In order to substantiate the case of prosecution, unfortunately, out of the two witnesses first witness is the wife of the deceased. On that ground, her evidence cannot be discarded but it must be subjected to a careful scrutiny. Despite of such exercise, the trial Court has thoroughly satisfied with her evidence since her evidence has inspired the confidence of the Court. According to PW.2, he was standing at the bus stop to board a bus, at that time, the deceased was stabbed to death. Thus, the occurrence was witnessed by PW.2. PW.10, who was running a petty shop 20 ft. away from the scene of occurrence also witnessed the accused running with the weapon of crime and stabbing the deceased. Despite the cross-examination of the witnesses, the testimony stood and thus their evidence has got to be accepted and the trial Court has rightly accepted their evidence.

The prosecution in its favour has pointed out yet another circumstance about the arrest of the accused and pursuant to confessional statement, recovery of MO.1 Knife and thus the prosecution has proved to the extent that it was the accused who stabbed the deceased to death.

Coming to the question of the act of the accused, the Court has necessarily to discredit the contention of the learned Counsel for the appellant. The only contention put-forth by the learned Counsel for the appellant is that due to sudden provocation the accused had acted. In the instant case, the statement of the accused is that he was under the impression that it was the deceased, who had taken his wife away. Had it been true, the accused ought to have given a complaint to the police. Without ascertaining the fact, he acted in a cruel manner and stabbed the deceased to death. From the post-mortem certificate, it could be seen that there are 21 injuries inflicted, out of which, 19 were cut and stab injuries. In the opinion of the Court, only on a suspicion, the appellant has acted in a cruel manner even without ascertaining the fact. In such circumstances, nothing could be inferred that there was a sudden provocation and the accused acted on frustration and the act of the accused would only attract the penal provisions of culpable homicide not amounting to murder. Under the given circumstances, it would be clear that he acted naturally attracting the penal provisions of murder.

The trial Court has rightly convicted the accused u/s 302 IPC and awarded life imprisonment and it does not require any interference by this Court. The judgment of the trial Court is sustained. The Criminal Appeal fails and the same is dismissed.