Saravanan vs The State

M. Chockalingam, J.—This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court, Periyakulam, made in S.C.

No. 86 of 2007 whereby the sole accused/appellant stood charged u/s 302 of IPC, tried, found guilty as per the charge of murder and awarded

life imprisonment along with a fine of Rs. 5000/- and default sentence.

The short facts necessary for the disposal of this appeal can be stated as follows:

(a) P.W.1 is the wife of the deceased Balamurugan. One Muneeswari is the brother''s wife of the deceased. The accused/appellant is the brother

of the said Muneeswari. The family of the deceased owned a house at Subbukothanar Street in which Muneeswari was residing. P.W.1 and her

husband were residing at Buddharpalli Street. Two years prior to the occurrence, there was a wordy altercation between the deceased and

Muneeswari in their ancestral house. On seeing this, the accused/appellant objected to that. The deceased, the husband of P.W.1, questioned the

conduct of the accused. Immediately, the accused took an aruval and attacked him. The matter was reported to P.W.5, who was the Secretary of

the Community Sangam. The community people in their meeting informed the accused that he should not enter the street and pacified the situation.

Despite the decision, the accused was often coming to the ancestral house. The same was questioned by the deceased. P.W.3, the father of

P.W.1, brought his daughter to the house of P.W.1. Since they did not have the sufficient accommodation, they went to the ancestral house. At

that time, there was a wordy altercation between the deceased and the said Muneeswari, and one was telling the other that they should vacate the

house.

(b) On 19.3.2007 at about 10''O Clock, the deceased informed Muneeswari that they would occupy the ancestral house and would not vacate.

Aggrieved over the same, Muneeswari went to the police station and gave a report. On coming to know about the same, at about 10.00 P.M., the

deceased questioned Muneeswari why she should go to the police station to give a complaint for nothing. At that time, the deceased and

Muneeswari were quarrelling. The accused who came there, asked his sister Muneeswari about the quarrel. Then uttering the words ""he should not

be allowed to do like this"", the accused went outside with anguish. The deceased shouted at Muneeswari and came out of the house and was just

proceeding in the street. P.Ws.1 and 2 also came out. At that time, the accused who was standing with an aruval, repeatedly attacked him on his

neck. The same was witnessed not only by P.Ws.1 and 2, but also by P.Ws.3 and 4. When there was a distressing cry, he left the place of

occurrence. The husband of P.W.1 died at the spot.

(c) P.W.1 proceeded to the respondent police station and gave a report, Ex.P1, at 23.45 hours to P.W.15, the Sub Inspector of Police. On the

strength of Ex.P1, the report, a case came to be registered in Crime No. 179 of 2007 u/s 302 of IPC. The printed FIR, Ex.P15, was despatched

to the Court, and it has reached the Judicial Magistrate at about 1.30 A.M. on 20.3.2007.

(d) P.W.16, the Inspector of Police of the Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an

inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P16. He also recovered the material objects from the place

of occurrence. Then he conducted inquest on the dead body of Balamurugan in the presence of witnesses and panchayatdars and prepared an

inquest report, Ex.P17. Thereafter, the dead body was sent to the Government Hospital for the purpose of autopsy.

(e) P.W.9, the Assistant Surgeon, attached to the Government Hospital, Bodinayakanur, on receipt of the requisition, has conducted autopsy on

the dead body of Balamurugan and has issued a postmortem certificate, Ex.P5, with her opinion that the deceased would appear to have died of

shock and haemorrhage due to external injury No. 1 and 2 and its corresponding internal injuries 12 to 16 hours prior to autopsy.

(f) Pending investigation, the accused was arrested on 20.3.2007, when he came forward to give a confessional statement voluntarily. The same

was recorded in the presence of witnesses. Ex.P18 is the admissible part of the confessional statement. Consequent upon the same, he produced

M.O.1, aruval, M.O.6, nylon bag, and M.O.7, jute rope, which were recovered under a cover of mahazar. He was sent for judicial remand. All

the material objects were subjected to chemical analysis which brought forth two reports namely Ex.P11, the chemical analyst''s report, and

Ex.P12, the serologist''s report. On completion of investigation, the Investigator filed the final report.

The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined

16 witnesses and also relied on 19 exhibits and 13 material objects. On completion of the evidence on the side of the prosecution, the accused

was questioned u/s 313 of Code of Criminal Procedure 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 the above punishment. Hence this

appeal at the instance of the appellant.

Advancing arguments on behalf of the appellant the learned Counsel in his sincere attempt of assailing the judgment of the trial Court, would

submit that the occurrence, according to the prosecution, has taken place at about 11.30 P.M. on 19.3.2007, and P.Ws.1 to 4 were shown as

occurrence witnesses; that the names of P.Ws.3 and 4 are not found in Ex.P1, the report; that under the circumstances, they could not have seen

the occurrence at all; that all the witnesses examined are closely related to the deceased, and thus they are all interested witnesses; that insofar as

the earlier incident of quarrel between Muneeswari, the sister of the accused, and the deceased in the past, no one has deposed, and this motive

attributed to the accused was not at all established; that according to the prosecution, so many witnesses were actually present at the place of

occurrence, but no one has been examined; that P.Ws.1 and 2 could not have been in the place of occurrence at all; that according to P.W.2, the

deceased was in the police station till 9.30 P.M., and he returned home, and they all had food and went to the place of the ancestral house only at

about 11.30 P.M.; that P.W.9, the Doctor, who conducted postmortem, has categorically stated that 100 gms of partly digested cooked food

material was found in the stomach, and it would take 4 to 6 hours for semi-digestion; and that if to be so, the occurrence could not have taken

place as put forth by P.Ws.1 and 2.

The learned Counsel would further add that according to P.Ws.1 and 2, they lifted the body, and their clothes were completely drenched with

blood; but, those material objects were actually not recovered from them; that according to the prosecution, the occurrence has taken place at

11.30 P.M., and subsequently the case was registered at 11.45 P.M., and the FIR has reached the Judicial Magistrate at 1.30 A.M. the next day;

but P.W.11, the Photographer, has categorically stated that he went to the place of occurrence and took the photographs at about 12.00 A.M.

night, and therefore, it would be quite impossible; that the time what was given was actually false; that P.W.6 was shown as a witness to Ex.P1, the

complaint; that he has categorically admitted that he signed Ex.P1 at the place of occurrence; that contrarily, it is stated by P.W.15, the Sub

Inspector of Police, that Ex.P1 complaint was given at the police station, and then the case was registered; that it is highly doubtful whether Ex.P1

could have come into existence as put forth by the prosecution; that P.W.1 has categorically stated in evidence that the occurrence has taken place

near Sandhanamariamman Temple; but, the said Sandhanamariamman Temple is not found in the sketch; that under the circumstances, the place of

occurrence as shown by the prosecution is also doubtful; and that it would also indicate that P.Ws.1 and 2 could not have seen the occurrence at

all.

Added further the learned Counsel that Ex.P5, the postmortem certificate, would indicate that six injuries are found; that out of these six injuries,

four are found to be cut injuries, and the other two are not found in the neck; that one was noted on the right fronto parietal region of scalp and the

other was noted on dorsum of left lower hand near wrist joint, but P.W.1 has not stated so in Ex.P1, the report, or not stated even at the time of

evidence; that those injuries which are found on the body of the deceased, were not properly accounted, and thus the prosecution has failed to

prove the motive.

It is further submitted by the learned Counsel that the Investigator would claim that he was arrested on 20.3.2007, when he came forward to

give a confessional statement pursuant to which M.O.1, aruval, M.O.6, nylon bag, and M.O.7, jute rope, were recovered from him; but contrarily,

P.W.2 has stated that the accused was found in the police station on the very night itself; that P.W.3 has categorically stated that the accused was

caught red handed and handed over to police; that under the circumstances, the evidence in respect of arrest and confession and the evidence of

P.W.16, the Investigating Officer, are found to be discrepant; that in such circumstances, the arrest, confession and recovery cannot but be false,

and hence he is entitled for acquittal giving the benefit of doubt; but, the trial Judge has taken an erroneous view.

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 Balamurugan, the husband of P.W.1, was done to death in an incident that had taken place at about 11.30 P.M.

on 19.3.2007. Following the registration of the case, the investigation was taken up by P.W.16, the Inspector of Police, and after the inquest was

over, the dead body was sent to the Government Hospital for the purpose of postmortem. P.W.9, the Doctor, who conducted autopsy, has given

a report that he died out of shock and haemorrhage due to the injuries sustained by him. The fact that he died out of homicidal violence was not

disputed by the appellant, and hence it has got to be recorded so.

In order to substantiate that it was the accused who attacked him with an aruval and caused his death, the prosecution examined P.Ws.1 to 4.

It is true that P.W.1 is the wife and P.W.2 is the daughter of the deceased. It is settled law that merely because of the relationship of the parties

with the deceased, their evidence cannot be discarded, but before acceptance, careful scrutiny test must be applied. In the case on hand, this

Court is satisfied that their evidence is natural and cogent, and hence it has got to be accepted. All these witnesses have spoken in one voice that

they owned an ancestral house in which Muneeswari, the sister of the accused, was staying; that they were actually staying in another house at

Buddharpalli Street; that on the previous day, there was a quarrel and also on so many occasions, there were quarrels between the deceased and

Muneeswari, the brother''s wife of the deceased; that on the earlier occasion also, the accused attacked the deceased; that the same was pacified

by the intervention of the community people; that also on the date of occurrence on the morning hours, there was a wordy altercation between the

deceased and Muneeswari; that Muneeswari went to the Police Station to give a complaint; that on that night at about 10.00 P.M., the deceased

questioned Muneeswari why she should go to the police station to give a complaint; that at that time, the accused came there and also witnessed

the said quarrel, and following the same, when the deceased came out of the house, P.Ws.1 and 2 were also just coming out along with him; and

that at that time, the accused who was standing with an aruval, attacked him indiscriminately on his neck and caused his death. The evidence of

P.Ws.1 and 2 stood fully corroborated by the medical evidence canvassed through P.W.9.

The contention put forth by the learned Counsel for the appellant that six injuries as found in the postmortem certificate, are not accounted by

P.Ws.1 and 2 cannot be accepted. P.W.1 is the wife, and P.W.2 is the daughter of the deceased. They have categorically stated that he gave

number of cuts on the neck. According to the Counsel, four injuries are noticed on the neck and the other two injuries are not accounted for. But,

in a given situation like this, when P.Ws.1 and 2 are under the grip of excitement, one could not expect them to notice the number or the seat of the

injuries. It is true that in the instant case, the occurrence has taken place at about 11.30 P.M., and the complaint was given at about 11.45 P.M.

Immediately the case has been registered, and the FIR has reached the Judicial Magistrate at about 1.30 A.M. It remains to be stated that the

motive and the previous incident which led the accused to do so, and the fact that P.Ws.1 and 2 are shown as eyewitnesses, and the case has been

registered within a short span of 15 minutes, and the FIR has also reached the Magistrate within an hour and 45 minutes and the necessary proof

therefor, would clearly indicate that P.Ws.1 and 2 could have been the eyewitnesses to the occurrence. But, at the same time, as rightly pointed

out by the learned Counsel, P.Ws.3 and 4 could not have been present at the place of occurrence.

The other contention put forth that P.W.11, the Photographer, came to the place of occurrence at about 12.00 A.M. itself, and he took

photographs and therefore, the evidence of the eyewitnesses should not be believed cannot be accepted. It should not be forgotten that P.W.11

was called during night hours, and he went to the place, and there is no note prepared by P.W.11 from which he could speak. It could not have

been except by a memory, for which no importance could be given.

The learned Counsel for the appellant brought to the notice of the Court certain discrepancies. As far as the FIR is concerned, P.W.1 who is

the author of the report, Ex.P1, and also P.W.15, the Sub Inspector of Police, who registered the case, have been examined. Thus, it leaves no

doubt in the mind of the Court as to the registration of the case. Apart from that, it has also reached the Judicial Magistrate at about 1.30 A.M. as

could be seen from the original FIR.

This Court is able to see force in the contention put forth by the learned Counsel for the appellant in respect of the arrest, confession and

recovery of M.O.1, aruval, and other material objects from the accused in view of the evidence adduced by P.W.2 that the accused was taken to

the police station on the very night itself immediately after the occurrence. It would be quite clear that the claim of the Investigator that he was

arrested later, and also he gave a confessional statement, and the consequent recovery cannot but be false, and they have got to be rejected. Even

barring that evidence, the prosecution had suffice evidence of the occurrence witnesses namely P.Ws.1 and 2, and also it is corroborated by the

medical evidence. Thus it can be well stated that by sufficient evidence, the prosecution has proved that it was the appellant/accused who attacked

the deceased at the time and place of occurrence and caused his death.

As far as the nature of the act of the accused is concerned, this Court is of the considered opinion that the same would not attract the penal

provision of murder. In the case on hand, as could be seen from the available evidence, Muneeswari was living alone in the ancestral house, and

P.W.1 and the deceased were living with the family in Buddharpalli Street. On the earlier occasion, the deceased was quarrelling with Muneeswari,

a womenfolk, and on the date of occurrence also, on the morning hours, he quarrelled with her which impelled her to go to the police station to

lodge a complaint, and despite the fact, he continued to quarrel with her during night hours at about 10.00 P.M. This was witnessed by the

accused, who is none else than the brother of the said Muneeswari, and he who could not tolerate the same, has acted so. At that time, he has also

questioned about the conduct of the deceased in quarrelling with a womenfolk. Under the circumstances, the act of the accused cannot but be one

due to sudden provocation, and it was neither intentional nor premeditated. Hence the act of the accused would fall u/s 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 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 sentence already undergone by him, shall be

given set off. The fine amount and default sentence imposed by the trial Court, will hold good.

In the result, this criminal appeal is, accordingly, disposed of.