Seenivasan vs State

S. Jagadeesan, J.—The first accused in S.C.No.136 of 1989 on the file of the District and Sessions Judge, Madurai is the appellant herein. He along with his mother Meenakshi A2 were charged for the offence u/s 302 read with Section 34 of the Indian Penal Code for causing the death of one Ayyana Konar the father of A1 the appellant herein and A3 and the husband of A2. A2 was further charged for the offence u/s 324 of the Indian Penal Code. A3 the sister of the first accused and daughter of the deceased was charged for the offence u/s 323 of the Indian Penal Code for causing injury in P.W.1. The learned Sessions Judge found the first appellant herein alone guilty for the offence u/s 302 of the Indian Penal Code and Sentenced him to undergo life imprisonment by his judgment dated 7-8-1989. So far as A2 is concerned, the learned Sessions Judge found her guilty for the offence u/s 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for fifteen days. Similarly, A3 was found guilty for the offence u/s 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for fifteen days. Both A2 and A3 already underwent the sentence and as such, the appellant herein. A1 alone preferred this appeal.

The prosecution case rests upon the evidence of PWs 1, 2 and 6 the eyewitnesses. PW1 is the brother in law of the deceased and PW 6 is the sister of the deceased. PW2 is the son of PW5, who entered into an agreement with the deceased to purchase the house property. PWl the brother in law of the deceased in his evidence had deposed that the first accused is the son, the second accused is the wife, and the third accused is the daughter of the deceased respectively. These three accused were charged for the murder of the said Ayyana Konar the deceased along with another son of the deceased Ravi a juvenile. A2 is the first wife of the deceased. The deceased married a second wife one Chellammal and for the past eight years prior to the date of occurrence, he was living with the second wife.

While so, the deceased wanted to dispose of the only house property of the family, negotiated with PW5 and entered into an agreement of sale. Accused 1 to 3 got annoyed with the conduct of the deceased in trying to dispose of the only house belonging to the family. They wanted to question the deceased. While the deceased was in the house of PW5 on 5.5.1988 at 10 p.m. all the three accused went there. P.W. 5'' s wife Jayam. His daughter in law Jayalakshmi and PW 2 the son of PW5 all were present. A2 questioned the deceased as to whether he can sell the house. She was also armed with a ferruled stick MOl and beat the deceased on his head. The deceased fell flat on the floor. PW1 tried to lift him. At that time, A2 beat PW1 on his fore head. Al took the stone from the nearby place and hit the deceased saying that only if you are alive, you can dispose of the property. The juvenile accused, Ravi also armed with MO3 iron pipe and beat PW1 on his left thigh. A3 hit PW1 with MO4 stone on his right leg These, who were in the house of PW 5 raised an alarm and immediately, the accused ran away.

PW 1 vent to Avaniyapuram Bus stand and brought an auto rickshaw to take the deceased Ayyana Konar. At the time, he saw PW5 who also accompanied him. PW1 and PW5 took the deceased to the hospital where he was declared dead at about 1 a.m. on 6.5.1988. On examination, the following injuries are found on the deceased.

Lacerated injury 3 cm x 2 cm front of mid of fore head.

2.Lacerated injury 3 cm x 1 cm at right side of fore head.

3.Blood discharge from left ear and both nostrils present.

PW 1 was treated for the injury sustained by him in the course of the incident. PW3 the doctor attached to the Government Hospital, Madurai after examining the deceased made the entry EXP2 in the accident register. On finding that the deceased was dead, he sent the death intimation EXP3 to the police. PW9 on 6.5.1988 at about 5.30 a.m. received the death intimation, while he was on his rounds. He went to Rajaji Government Hospital at 6 am received EXP3 from the outpost police station and examined PW 1 at 6.30 a.m. He recorded the statement of PW1 and after read over the same, he obtained the thumb impression of PW 1 attested by PW5 and the same is EXPl At 7.30 a.m. he returned to Avaniyapuram Police Station and registered EXP1 as crime No.275 of 1988 u/s 302 of the Indian Penal Code and under various other sections. Thereafter, he prepared the express report ExP. 15 and forwarded the same to the court. He informed the Inspector about the occurrence over the telephone.

PWlO-the Inspector of Police at Thiruparangundram received the telephonic message from PW9 at 7.30 a.m. on 6.5.1988. He reached Avaniapuram Police Station at 8.30 a.m. and went to the hospital where he held inquest over the dead body between 9 a.m. and 12 Noon. EXP16 is the inquest report. During the inquest, he had examined PWs 1,2,5 and others. Thereafter, the requisition was given to conduct the autopsy.

PW4 the doctor attached to Madurai Medical College received EXP5 the requisition from PW10 at 12.40 p.m. on 6.5.1988. He commenced autopsy at 1 p.m. On examination of the dead body. PW1 found the following injuries on the deceased:

Oblique patterned abrasion (linear striation) 4 x 3 cm over the lateral aspect of front of right elbow region.

Bruising 3x2 eras with a laceration 2 x 1/2 cm vertically over the right fore head just near hair margin.

An oblique bruising 6x2 cms with a laceration 51/2 x 11/2 cm over the left fore head near hair margin.

Bruising 3 x 1 cm with a laceration 2 x 1/2 cm over the left cheek below eye.

On dissection of the chest and abdomen, multiple bruisings were seen over the lungs.

EXP6 is the post mortem certificate. The doctor has opined that injury No.3 is necessarily fatal. Injury Nos. 1 and 4 are possible by beating with MOl. The injury No.4 is also possible by falling of MO.2. Ultimately, the final opinion of the doctor is that the deceased would appear to have died of craniocerebral injuries. PW 10 reached the place of occurrence at 12.30 PM and prepared the observation mahazar Ex.P.9. He also prepared the rough sketch Ex.PI7. Further he recovered M.Os. 1 to 4 and 7 and 8 from the scene of occurrence under EXP. 10 attested by PW7 and another. At 4.30 p.m., he arrested A2, A3 and the Juvenile accused near the bus stop of Chinna Udaipu. On 6.5.1988, he examined PWs.6, 7 and others and sent the accused for remand. Al surrendered at Sivagangai court. On 5.6.1988, he filed charge sheet against the accused and the case against the juvenile was separated. After full fledged trial, as stated above, the learned sessions Judge found the appellant herein-Al alone guilty for the offence u/s 302 of the Indian Penal code for causing the death of his father.

Since A2 and A3 have already served the sentence for the offence u/s 323 of the Indian Penal Code, and the appeal having been filed by A1 alone, it is for this court to consider the case of the prosecution against Al alone. So far as other accused are concerned, it is unnecessary to deal with it elaborately.

Learned counsel for the appellant, though contended that the prosecution had shifted the scene of occurrence as per the rough sketch, and also drew the attention of this court to some contradictions in the cross examination of PWs 1, 2 and 6 the eyewitnesses, ultimately conceded that either the shifting of the scene of occurrence or the contradictions pointed out by her in the cross examination of the witnesses are not vital factors to vitiate the prosecution case as well as the findings of the learned sessions Judge with regard to the guilt of A1. Ultimately, she pleaded that even if the prosecution case is accepted into, as deposed by the eyewitnesses PWs 1,2 and 6 A2 and A3 were armed with the stick; Al accompanied them unarmed. Only at the place of occurrence i.e. in the house of PW5, during the wordy quarrel while questioning the conduct of the deceased in his attempt to alienate the family property, A1 lost his temper and picked up a stone, which was lying nearby and hit the deceased, which ultimately ended the life of the deceased. Hence, it cannot be said that Al has caused injury on the deceased with any intention to cause the death of the deceased or equally, it cannot be said that they went to the place of PW5 with any premeditation to do away with the deceased. Hence, on the materials available on record, Al is entitled for the exception u/s 300 of the Indian Penal Code and he can be punished for the offence u/s 304 Part I of the Indian Penal Code.

Learned Government Advocate on the criminal Side fairly conceded that it is not the prosecution case that A1 armed with deadly weapon and went to the house of PW5 where the deceased was negotiating the sale of the family house property. The three accused, who are none other than the sons, wife and daughter of the deceased, went to the house of PW5 only to prevent the sale of the family house, and asked the deceased about the same, as they were living in the said house and in the wordy altercations, the incident took place. The stick seized from A2 and A3 are also cannot be said to be a dangerous weapon in order to conclude that the accused went to the house of PW1 with any predetermination to do away with the deceased. The occurrence having taken place due to family dispute as the deceased was trying to dispose of the only house property, it cannot be said that the appellant herein had committed an offence u/s 302 of the Indian Penal code.

While we consider the case of the prosecution, we also appreciate the fairness with which the learned Government Advocate on the Criminal Side represented the case. Even though he has no other option except to state the case as per the prosecution case, but still, a word of appreciation is necessary for his fairness, because without contending elaborately by drawing the attention of this court for the unnecessary materials and not straining the court to consider the irrelevant factors and also for the confinement of the relevant factors for the disposal of the case we recorded a word of appreciation of fairness with which the learned Government Advocate on the Criminal Side represented the case.

PW1. who is the brother in law of the deceased, deposed that on the date of occurrence i.e. on 5.5.1988 at 10 p.m. A 1 to A3 and the juvenile, Ravi came to the house of PW5 where the deceased was negotiating the sale of the house property of the family wherein the accused are living. Further, the prosecution evidence would be that the deceased was living with one chellammal either as a second wife or a concubine. Hence, it is clear that the deceased had neglected the family of A2 the first wife and Al and A3 the son and daughter respectively and also the said Ravi the juvenile. Hence, it is the evidence of PW1 that the accused joined together to prevent the alienation of the house property of the family by the deceased, as that is the only available for the family and if that is alienated, the entire family of the accused would be without any shelter. While questioning the deceased with regard to his conduct in his attempt to alienate the property, it seems that the deceased wanted to assert his right to sell the property and receive the sale consideration. This has caused certain amount of provocation in the minds of the three accused as well as the juvenile. A2 had beaten the deceased on his head, and the deceased fell down. Al picked up a stone nearby and hit on the head of the deceased. A3 is also said to have caused minor injury on PW. 1. PW2 as well as PW6 the other eyewitnesses were present in the scene of occurrence. PW2 being the son of PW5 and PW6 the sister of the deceased also corroborate the evidence of PW1 on all these material facts. Hence, as per the admitted case of the prosecution, the entire incident seems to have taken place suddenly, that too, while the deceased asserted his right to alienate the only house property of the family wherein the accused are residing. When the deceased has left the accused and was living with the second wife or the concubine chellammal, he may not bother about the only shelter available for the accused. Hence, the accused were perturbed with the conduct of the deceased in his attempt to alienate the property and to receive the sale consideration for himself without making any alternate provision of residence to the accused herein. Hence, naturally the conduct of the deceased would have infused a state of uncertainty about their shelter and thereby developed hatred towards the deceased. The conduct of Al in coming to the house of PW5 to question the deceased with regard to his conduct in his attempt to alienate the property. in the absence of. any evidence that he was armed with any weapon, establishes the normal course of a son towards his father. This clearly establishes that the accused went to the house of PW5 only to question the deceased with regard to his intention to alienate the property and make the accused shelter less .In the absence of any evidence to show that the accused went to the house of PW5 to do away with him in order to save the property, this court finds that the conduct of the accused in coming to the house of PW5 is without any premeditation to do away with the deceased.

Even though at the inception there is no intention, definitely the intention to cause death can be inferred in the course of incident also. But in this case, from the evidence of the eyewitnesses, we are unable to say that even in the course of incident there is no common intention on the part of the accused to do away with the deceased. The trial court also appreciated this aspect and acquitted A2 and A3 for the charge u/s 302 r/w. 341.P.C. and found guilty for the charge u/s 324 and 323 of the Indian Penal code respectively. Hence, the fact remains as to whether the act of throwing the stone by A1 would amount to an offence u/s 302 of the Indian Penal Code.

With the fear of repetition, it is necessary for us to say that the prosecution case is that Al went to the house of PW5 unarmed. Only after knowing the assertion of the deceased about the intention to alienate the property the only house where the accused are living, the appellant got annoyed and picked up the stone lying nearby and hit the deceased. The act of Al the appellant herein causing the injury on the deceased by just picking up the stone from the scene of occurrence and throwing it at the deceased definitely cannot be said to be an offence u/s 302 of the Indian Penal Code. Hence, we are clear in our opinion that the prosecution has not made out a case for the offence u/s 302 of the Indian Penal Code so far as the appellant herein is concerned.

While it is the admitted case that A1 picked up the stone in the nearby place and hit the deceased his father, in view of the dispute with regard to the house property wherein the accused are living, definitely the appellant is entitled for the exception u/s 300 of the Indian Penal Code. The entire evidence let in by the prosecution clearly establishes that the deceased was bent upon in alienating the only house property available for the accused to live. While the deceased was living with his second wife and making an attempt to deprive the accused from their shelter, naturally the accused got annoyed and sincerely attempted to prevent the deceased from alienating the property. This is very clear, since PW5 is the intending purchaser at whose house, the objection was raised by the accused. Perhaps, the accused might have done this in order to express their intention to PW5 with regard to their protest of alienation of the house property by the deceased. Hence, we have no doubt as stated already that the prosecution has not made out an offence u/s 302 against the appellant herein.

In the result, the findings of the learned sessions judge with regard to the offence u/s 302 of the Indian Penal code are set aside. The appellant is entitled for the benefit of exception u/s 300 of the Indian Penal Code and is liable to be punished only for the offence u/s 304 part I of the Indian Penal Code, since the act of the appellant is to the effect of causing such bodily injury as is likely to cause death, even though he might not have any intention to cause the death of the deceased and is sentenced to undergo five years rigorous imprisonment. Since the appellant is on bail, the bail bonds executed by the appellant are directed to be cancelled. Pursuant to the order dated 4-4-2000, the accused was produced before this court yesterday i.e. on 10-4-2000 and he is also present today i.e. on 11-4-2000. Hence, the police officials are directed to take the first accused/appellant herein under custody directly. The appeal is partly allowed in the above terms.