Santhanapandi Thevar vs State

M. Chockalingam, J.—The sole accused in a case of murder on being found guilty as per the charge of murder and awarded imprisonment for life and also found guilty u/s 506(ii) IPC and sentenced to undergo rigorous imprisonment for two years thereunder has challenged the judgment of the Court of Session, Tirunelveli Division, made in S.C. No. 387 of 2003 in this appeal.

The brief facts necessary, sans unnecessary facts, for the disposal of the appeal can be stated thus:

(a) P.W.1 Velsamy, P.W.2 Shanmugaiah, the deceased Tirumalaisamy and the accused Santhanapandi are all belong to a place called Chokkampatti within the jurisdiction of the respondent police. The deceased is the brother-in-law of P.Ws.1 and 2. On a number of occasions, prior to the occurrence, the deceased was abusing the wife of the accused and therefore the accused gave a complaint to P.Ws.6 to 8, who are all ex-village president and Nattanmais of the said village and in turn, they summoned the deceased but he refused to come.

(b) While the matter stood thus, on 05.06.2003 at about 5.45 p.m., when P.Ws.1 to 3 and the deceased were sitting on a cement bench in the Pillaiyar Koil situate on the western side of the bus-stop, the accused came there and questioned about the conduct of the deceased in abusing his wife and thus there was a quarrel between the two, following the same the accused took an aruval (M.O.1) and inflicted injuries on the right side neck and right collar bone of the deceased and when it was questioned by the witnesses, the accused also criminally intimidated them and fled away from the place of occurrence. The said occurrence was witnessed by P.Ws.1 to 5 and P.Ws.1 to 3 took the deceased in the van belonging to P.W.11 to Kadayanallur Government Hospital. Ex.P-5 is the trip-sheet of the van. P.W.13, the doctor attached to the said Hospital, examined him and declared him dead. Ex.P-6 is the Accident Register issued by him in respect of the deceased. He also gave intimation to the police.

(c) Immediately, P.W.1 went to the Kadayanallur Police Station and gave a statement about the occurrence to P.W.15, the Sub-Inspector of Police and the same was reduced into writing by P.W.15. Ex.P-1 is the statement given by P.W.1. Based on Ex.P-1, P.W.15, the Sub-Inspector Police, registered a case in Crime No. 281/2003 under Sections 302 and 506(ii) IPC. Ex.P-9 is the Express FIR prepared by him and the same was despatched to the Court through P.W.16, the Head Constable. Ex.P-10 is the passport given to P.W.16. P.W.15 also sent the copies of the FIR to the higher police officials.

(d) On receipt of a copy of Ex.P-9 FIR, P.W.19, the Inspector of Police, took up the investigation at 7.25 p.m. on the same day, proceeded to the spot, made an inspection and prepared Ex.P-2 observation mahazar, attested by P.W.9 and another. He also prepared Ex.P-16, the rough sketch. From the scene of occurrence, P.W.19 recovered M.O.4, the bloodstained earth and M.O.5, the sample earth under Ex.P-3 mahazar attested by the same witnesses. On 06.06.2003 at 7.00 a.m., P.W.19 visited the Government Hospital and took photographs of the deceased through P.W.12, the photographer and M.O.6 series are the photos and their negatives. Thereafter, in the presence of panchayatdars and witnesses, P.W.19 conducted inquest on the body of the deceased and prepared Ex.P-17, the inquest report. He gave Ex.P-7, the requisition, to the hospital for conducting autopsy on the body of the deceased.

(e) P.W.14, the Senior Assistant Surgeon, attached to the Kadayanallur Government Hospital, conducted inquest on the body of the deceased at 10.30 a.m. on 06.06.2003 and after postmortem he gave Ex.P-8, the postmortem certificate, wherein he has opined that the deceased would have died of severe shock and haemorrhage due to fatal injuries 1 to 4. M.O.2, M.O.3 and M.Os.7 to 9 are the personal wearing apparels of the deceased recovered from his body after postmortem by P.W.17, the Head Constable and Ex.P-11 is the passport given to him.

(f) Pending investigation, P.W.19, the Inspector of Police, arrested the accused at 5.30 p.m. on 06.06.2003 in the presence of P.W.10 and another and when enquired, the accused volunteered to give a confessional statement. P.W.19 recovered M.O.1, the bloodstained aruval, produced by the accused under Ex.P-4 mahazar attested by the same witnesses and thereafter he sent the accused for judicial remand. He gave Ex.P-12 requisition to the Court to place the material objects recovered from the place of occurrence, from the body of the deceased and also recovered from the accused before the Forensic Department, which resulted in two reports, namely Ex.P-14, the Chemical Examiner''s Report and Ex.P-15, the Serologist''s Report. P.W.19, the Inspector of Police, examined the witnesses and recorded their statements. Since P.W.19 retired from service, P.W.20, successor to P.W.19, verified the materials available and filed the final report before the Judicial Magistrate concerned.

The case was committed to the Court of Session and necessary chargeas were framed. To substantiate the charges levelled against the accused, the prosecution marched 20 witnesses as P.Ws.1 to 20 and relied on Exs.P-1 to P-17 as well as nine material objects marked as M.Os.1 to 9. On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused denied them as false. On the side of defence, one Ganesan was examined as D.W.1 to the effect that the deceased Tirumalaisamy was in jail during the year 1995, but no documents were marked. On completion of the evidence on either side, the trial court heard the arguments advanced on either side, scrutinised the materials available and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty under Sections 302 and 506(ii) IPC, convicted him thereunder and sentenced him to undergo life imprisonment for the former offence and two years rigorous imprisonment for the latter offence, which is the subject matter of challenge before this Court.

Advancing her arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the prosecution mainly relied on five witnesses, namely P.Ws.1 to 5, among them, before the Court P.Ws.4 and 5 turned hostile and did not support the prosecution case and the remaining three witnesses, namely P.Ws.1 to 3, are close relatives of the deceased and apart from this, in the instant case, the medical evidence advanced by the prosecution is not in support of the prosecution case. Learned Counsel would further add that the alleged arrest of the accused and recording of his confessional statement and the consequential recovery of M.O.1 are all nothing but a false introduction to shape the prosecution case and in any event, the evidence adduced in this regard is not useful to the prosecution and further, in the instant case, the prosecution has not proved its case beyond reasonable doubts. Learned Counsel added further that even assuming that the prosecution has proved the case to the extent that the accused attacked the deceased with aruval and thus caused the death of the deceased, the act of the accused would not attract the penal provision of murder, as, concededly, on earlier occasions before the occurrence, the deceased was in the practice of abusing the wife of the accused and there was an occasion that when it was complained to P.Ws.6 to 8, the ex-president and Nattanmais of the village, they summoned the deceased but he did not respond and in such circumstances, it is quite natural for anybody to question the conduct of the person who abused his wife and as such, in the instant case, a wordy quarrel between the accused and the deceased preceded before the occurrence and in the sudden provocation the accused acted so and thus his act would not attract the penal provision of murder but it would be only culpable homicide not amounting to murder and the same has got to be considered by this Court.

The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions.

The Court paid its anxious consideration to the submissions made on either side and also made a thorough and careful scrutiny of the available materials.

It is not the fact in controversy that one Tirumalaisamy was died on homicidal violence. From the place of occurrence, he was taken by P.Ws.1 to 3 to the Government Hospital, Kadayanallur, where he was medically examined by P.W.13, the doctor, and declared dead and following which inquest was made by P.W.19, the investigator and thereafter the dead body was subjected to postmortem by P.W.14, the doctor, who has categorically opined in Ex.P-8, the postmortem certificate, that the deceased would have died of severe haemorrhage and shock due due to fatal injury Nos. 1 to 4. Apart from the above, the accused has never questioned this fact of homicidal violence at any stage of the proceedings. Hence it has got to be recorded so.

To substantiate its case that it was the accused who attacked the deceased with M.O.1 aruval in the place of occurrence on the date of occurrence, the prosecution examined five witnesses, namely P.Ws.1 to 5. Though P.Ws.4 and 5 have turned hostile and did not support the prosecution case, the prosecution had to its benefit the availability of the evidence of P.Ws.1 to 3. It is also true that P.Ws.1 and 2 are the brothers-in-law of the deceased. But, on that ground their evidence cannot be discarded. The evidence of P.Ws.1 and 2, despite the exercise of the test of careful scrutiny, stood the test. Apart from the evidence of P.Ws.1 and 2, the prosecution had the benefit of the evidence of P.W.3. All the three witnesses have spoken in one voice that at the time when they, along with the deceased, were sitting on a cement bench and chatting, the accused came there and there was a wordy quarrel, following which the accused took an aruval and attacked the deceased and direct consequence of the attack the deceased died. Though there was a lengthy cross-examination, the defence was not able to make any point from their evidence. Under such circumstances, the lower Court, after marshalling and considering the same proper, accepted their evidence and rightly too. In the instant case, the medical evidence adduced by the prosecution stood in full corroboration to the ocular testimony. Apart from this, the another circumstance in favour of the prosecution was recovery of M.O.1, aruval, pursuant to the confessional statement which the accused volunteered to give in the prosecution of P.W.10, the Village Administrative Officer and another, on the production of the same by the accused and this circumstance is also pointing to the nexus of the accused with the crime. Thus, the prosecution has brought-forth direct evidence, which is corroborated by the medical evidence and also recovery of the weapon of crime and in short, it could be stated that the prosecution has overwhelming evidence in the instant case for proving the fact that it was the accused who attacked the deceased with aruval and caused his death.

Insofar as the second contention raised by the learned Counsel for the petitioner that the act of the accused would not attract the penal provision of murder, the Court is able to see sufficient force in the said contention. Even as per the prosecution case, in earlier occasions, the wife of the accused was being abused by the deceased and despite the matter was complained to P.Ws.6 to 8, the ex-president and Nattanmais of the village, the deceased did not appear before them and hence the matter could not be put an end. On the date of occurrence, when the deceased was found sitting with other witnesses, the accused quite naturally questioned about the conduct of the deceased abusing his wife and that followed by a wordy quarrel between them and in that sudden quarrel provoked by the answer given by the deceased, the accused took M.O.1 aruval and attacked the deceased, which resulted in his death. From the above stated circumstances, it would be evident that the act of the accused was neither intentional nor pre-meditated but followed on a sudden quarrel and provocation and thus it would not fall under the ambit murder but it would only be termed as culpable homicide not amounting to murder and hence the penal provision of Section 302 IPC cannot be invoked but only Section 304(i) IPC in the given circumstances and accordingly the conviction and sentence imposed on the appellant/accused by the trial court u/s 302 IPC requires modification. Apart from this, as far as the conviction of the appellant/accused u/s 506(ii) IPC is concerned, there is ample evidence to prove the said charge, as pointed out by the lower court and accordingly the same has got to be sustained.

In the result, the conviction of the appellant/ accused u/s 302 IPC is modified into one u/s 304(i) IPC and he is sentenced to undergo seven years rigorous imprisonment thereunder instead of life imprisonment awarded u/s 302 IPC. In all other aspects, the judgment of the trial court is sustained. The sentence already undergone by the appellant/accused shall be given set off.

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