Shanmugam Sigari vs State

Janarthanam, J.—The Appellant is accused in S.C. No. 10 of 1986 on the file of learned Additional Sessions Judge, Vellore.

On trial, he was found guilty u/s 302 IPC, convicted thereunder and sentenced to imprisonment for life. Aggrieved by the said conviction and

sentence, the present action had been resorted to.

Brief facts are:

a. The scene village Mettu Kalpoondi is situate within the jurisdictional limits of Arani Rural Police Station. One Bonda alias Rajamani (since

deceased) hailed from the said village. The accused is none-else than the brother-in-law of the deceased, in the sense of himself having married one

Amaravathi, sister of the deceased P. Ws. 1 and 3 are the brothers of the deceased. P.W. 2 is a Pangali/(b) of the deceased and his brothers, P.

Ws. 1 and 3.

b. The accused, it is said, is a shikari, possessed of a licence to arm himself with a gun, as testified by P.W. 10, Assistant attached to the

Collectorate, Vellore. It appears, the accused, very often went to hunting animals and birds. He, it is said, had been addicted to liquor and more or

less, not even a day passed without himself consuming some sort of a liquor or the other. His daily routine was, it is said, that after returning from

hunting, he used to come to the house fully drunk and resort to beating his wife, Amaravathi. This attitude of the accused irritated the deceased and

he in turn, reprimanded the conduct of the accused in so beating his wife. The accused felt that it was none of the business of the deceased to

reprimand him. The accused rather felt that he could do anything with his wife and nobody could question him, even if he resorts to beating her.

c. When the accused took such an attitude, some two months prior to the occurrence, which event happened on 13.09.1985, a panchayat was

convened in the village, in which the accused was warned for his resorting to beating his wife quite often.

d. On the day of the occurrence, at about 5.30 p.m. P.W. 1, and the deceased went to the arrack shop for consuming arrack. The arrack shop, it

is said, is situate on the outskirts of the village. On their way, they happened

e. P.W. 1, and the deceased then went to be arrack shop and consumed arrack. In the arrackshop, P.W. 2. was also present and he (sic)o also

consumed some arrack. Thereafter, P. Ws. 1, 2, and the deceased returned to the village. P.W. 2. was proceeding in front, followed by the

deceased and then by P.W. 1.

f. In between the village and the arrackshop, there is the pumpset shed of one Ramachandra Iyer. People, it appears, used to take bath in the well

of the pumpset of the said Ramachandra Iyer. P.W. 3. brother of the deceased, after the day''s work, with a view to take bath, proceeded to the

said well. At that time, it so synchronized that P. Ws. 1, 2, and the deceased happened to pass the said Ramachandra Iyer''s pumpset shed. The

accused was stated to have been hiding near the pumpset shed with a gun (M.O. 1.) and on sighting the deceased, he aimed a shot at him and the

shot, so aimed, pierced through the chest of the deceased. On receipt of the gunshot, the deceased made hue and cry that the accused had shot at

him and therefore, he was to be caught. P.W. 1, appeared to have mandated P.W. 2, who was going in front, to catch hold of the accused and

himself went to the rescue of the deceased, who was about to fall

g. P.W. 1, who had gone to the rescue of the deceased, on seeing the gushing of blood from his chest, fell down unconscious and the deceased

also died more or less instantaneously. Sometime later, P.W. 2. and other villagers, who came there, lifted the body of the deceased and placed it

in front of the house of the accused.

h. Little later, P.W. 1, recovered his consciousness, went to the village and then to Arani, along with one Kottaiyan and met the Village

Administrative Officer, by name Harikrishnanaidu (since retired). The time was then 8.30 p.m. He narrated the occurrence to him and he, in turn,

drafted a complaint, as per his narration. After completing the complaint, he read over the same to P.W. 1, and he admitted the same to be

correct. Thereafter, P.W. 1, along with the said Kottaiyan and the Village Administrative Officer made a march to Arani Rural Police Station.

i. P.W. 9. was the then Sub-Inspector of Police, Arani Rural Police Station. At 10 p.m., while he was in charge of the Police Station, P.W. 1,

appeared before him and handed over the drafted complaint, Exhibit P.1. to him. P.W. 9, in turn, registered the same as a case in Crime No.

166/85 for an offence u/s 302 I.P.C. and for an offence u/s 3 of the Explosive Sub-stances Act read with Section 25(1)(a) of the Arms Act. He

also prepared express reports and sent the same to the concerned officials. Exhibit P.2. is the printed F.I.R. He also sent VHF message to the

Inspector of Police, who was then at Cuddalore. He immediately proceeded to the scene of occurrence and after reaching the scene, he made

arrangements for guarding the body of the deceased.

j. P.W. 11. taking up further investigation of the case, reached the scene village on the next day (14.09.1995) morning at about 6 A.M. After

inspecting the scene, he prepared Exhibit P. 3, observation mahazar. He also drew a rough sketch of the scene, Exhibit P. 23. At about 7.45

A.M., he seized from the scene bloodstained earth, along with grass, (M.O. 6.) besides sample earth (M.O. 7), under Exhibit P.4. were attested

by P.W. 4. Between 8:15 and 10:30 A.M. he held inquest over the body of the deceased. Exhibit P. 24 is the inquest report. During inquest, he

examined P. Ws. 1 and 2. He also caused the photographs of the scene and the deceased to be taken by the photographer, P.W. 8, who, in turn,

took photographs of the same. Exhibits P. 13. to P. 17 are the negatives, while Exhibits P. 18 and P. 22 were photo copies. After the inquest was

over, P.W. 11. handed over the body to P.W. 7 with a requisition, for the purpose of autopsy.

k. P.W. 5 was the then Medical Officer attached to the Government Hospital, Arani. On receipt of the requisition from P.W. 11, through the

Constable, P.W. 7, he held autopsy over the body of the deceased at 1.30 P.M. Exhibit P.7. is the postmortem certificate he issued. During the

course of autopsy, he removed from the body pellets (M.O. 8 series), and handed over the same to the police. He would opine that the deceased

would appear to have been shot at from a distance and in such process, M.O. 8. wearies could have got embedded in the body of the deceased.

He would appear to have died 20 to 24 hours prior to autopsy due to injuries sustained to vital organs like heart and lungs due to gun shot pellets.

l. After the autopsy was over, the Constable, P.W. 7. seized from the body lungi (M.O. 2.) sleeveless banian (M.O. 3), half shirt (M.O. 4), trouser

(M.O. 5.) and waist chord (M.O. 9) and handed over the same at the police station.

m. On 15.9.1995 P.W. 11 appeared to have had credible information about the whereabouts of the accused. At about 7 A.M. on that day, he

arrested the accused behind Sanjika Talkies Paiyur in the presence of P.W. 4. On interrogation, the accused appeared to have given a voluntary

confession u/s 27 of the Evidence Act, the admissible portion of which is Exhibit P.5. Pursuant to the said confessional statement, the accused took

P. Ws. 4. and 11 to one Rajendran Nainar''s thottam. The time was then 8.15 A.M. The accused took out the gun (M.O. 1) kept concealed in a

bush situate in the said Rajendran Nainar''s thottam and the same was seized under Exhibit P. 6, mahazar. The accused was brought to the police

station and then sent to Court for the purpose of remand. He examined P.W. 3. and others. On 16.9.1985 he sent Exhibit P. 8. requisition to the

Judicial Second Class Magistrate, Arani for the purpose of sending the incriminating material objects for the purpose of chemical examination. On

02.10.1985, he examined P.W. 5. On 02.10.1985, he examined P.W. 10.

n. P.W. 6. was the then Head Clerk attached to the Judicial Second Class Magistrate, Arani. On receipt of Exhibit P. 8. requisition, he, in turn,

pursuant to the directions of learned Magistrate separately packed and sent the incriminating material objects to the Chemical Examiner for the

purpose of examination, under the original of Exhibit P. 9, office copy of the letter. Exhibits P. 10. and P. 12. are the reports of the Chemical

Examiner and the Serologist respectively. Exhibit P. 11 is the report of the Ballistics Expert.

o. P.W. 11, after completing the formalities of the investigation, laid a final report against the accused u/s 173(2) Code of Criminal Procedure

before the Judicial Second Class Magistrate, Arani for offences u/s 302 and 506 (Part II) I.P.C.

On committal, learned Sessions Judge, North Arcot Division at Vellore, framed a charge against the accused for an offence u/s 302 IPC.

The accused, when questioned as respects the charge so framed, denied the same and claimed to be tried.

In proof of the charge so framed, the prosecution examined/P.Ws. 1 to P.W. 11, filed Exhibits P. 1 to P. 24 and marked M. Os. 1 to 9.

The accused, when questioned u/s 313 Code of Criminal Procedure as respects the incriminating circumstances appearing in evidence against

him, denied his complicity in the Crime. The accused, however, did not choose to examine any witness on his behalf.

Learned Sessions Judge, North Arcot Division at Vellore, on consideration of the materials placed on record and after hearing the arguments of

the respective learned Counsel for the accused and learned public Prosecutor, however, rendered the verdict, as stated above.

Mr. K. Rajakumar, learned Counsel appearing for the Appellant accused would press into service the following two points for consideration:

(1) The evidence on record is rather grossly inadequate and insufficient to warrant a conviction and sentence upon the Appellant-accused, as had

been done by the Court below.

(2) Even otherwise, the materials available on record, in the shape of evidence-oral and documentary-if sifted and scanned in a broad spectrum

analysis would point out that the alleged act of the accused, on the facts and in the circumstances of the case, would amount to an offence, if at all,

u/s 304 Part I IPC and definitely not u/s 302 IPC.

Mr. R. Raghupathi, learned Additional Public Prosecutor would, however, repel such submissions.

We would now enter into the arena of discussion, as relatable to the submissions of either learned Counsel.

There is no pale of controversy that the accused is none-else than the brother-in-law of the deceased, in the sense of himself having married the

sister of the deceased. It is also not in dispute that P. Ws. 1 and 3 are the brothers of the deceased and P.W. 2 is also related to the deceased, as

being his pangali.

The case of the prosecution hinges upon the direct testimony of P. Ws. 1 and 2 and the circumstantial evidence, as disclosed by the testimony of

P.W. 3, who would say that he had the fortuitous opportunity of seeing the accused running away from the scene with M.O. 1, gun, when he

happened to go to the well of Ramachandra Iyer for the purpose of taking bath after the day''s hard work. It is the case of the prosecution that the

accused, being a shikari was addicted to consumption of liquor and that not even a day passes without himself consuming of arrack and his

revelling in beating his wife. This sort of a conduct on the part of the accused irritated the deceased and he very often resorted to reprimand the

conduct of the accused. The accused, in turn, felt that it was none of the business of the deceased to question him, when he resorted to beating his

wife. The accused rather felt that he was having every privilege to beat his wife and nobody could question him about such activities. When the

accused had taken such a rigid stand some two months prior to the occurrence, a panchayat was, however, convened in the village, obviously to

avoid any perilous consequences to flow from his resorting to the beating of his wife. In that panchayat, it appears that the accused was let off with

a warning. This sort of the conduct of the accused had been spoken to by P.W. 1, and no question had been hurled at him during the course of

cross-examination relatable to this aspect of the matter. So we can take it for granted that the accused had been revelling, day-in-and day-out, in

beating his wife, after consumption of arrack and this sort of the conduct on the part of the accused had been reprimanded by the deceased and

therefore, the accused was having some sort of a grudge or grievance against the deceased.

On the day of the occurrence, at about 5.30 P.M. the deceased, while he was in the company of his brother, P.W. 1, was going to the

arrackshop, the accused emerged from the opposite direction and a wordy altercation arose between the deceased and the accused. The wordy

altercation between them went to such an extent that the accused went away from the scene, after vowing to wreak vengeance. In order to have

that, the accused, though possessed of M.O. 1, gun at the relevant point of time, did not appear to have been prevailed upon to do anything.

However, in order to translate into action what he had proclaimed, in the sense of himself gunning down the deceased at some point of time or

other, the accused, who went away from the scene, somehow or other, did not seem to have returned back home and it appears he was hiding

near the pumpset shed of Ramachandra Iyer waiting for the arrival of the deceased, from the arrack shop, situate very near the place, where he

was hiding. The deceased returned from the arrackshop, alongwith P.Ws. 1 and 2 at or about 5.45 P.M. P.W. 2 was proceeding in front,

followed by the deceased and his brother, P.W. 1. When they were so proceeding, accused shot at the deceased with M.O. 1, gun, which, in turn,

got pierced through the chest of the deceased and the deceased died on the spot. This sort of the occurrence is spoken to by not only P.W. 1., but

also by P.W. 2. we have perused the evidence of P.Ws. 1 and 2. We are unable to find any sort of an infirmity in their evidence, in the sense of

suffering from any vital contradiction, so that their presence in the scene becomes doubtful. This apart, both P.Ws. 1 and 2 are the close relations

of the accused, as well as the deceased. They have nothing to prefer between the accused and the deceased. There is no reason whatever for them

to falsely implicate the accused in the heinous crime of murder of the deceased, leaving out the real assailant.

Top of all, P.W. 1, is interested in the cause and welfare of his sister Amaravathi, who is none-else than the wife of the accused. Such being

the case, the evidence of P.W. 1, as relatable to the occurrence cannot at all be doubted. The occurrence, in fact, had happened more or less in

the main way between the village and the arrack shop, namely, pumpset shed of one Ramachandra Iyer. It is but natural for the villagers like P.

Ws. 1 and 2 and the deceased to have gone to the arrackshop for the purpose of consuming arrack and only on one of such returns, the

occurrence had happened. In such circumstances, the presence of P.W. 2. in the scene cannot at all be suspected.

Like P.W. 1., P.W. 3, is also very much interested in the cause and welfare of his sister, Amaravathi, whose husband is the accused. He is not

a witness, as already stated, to the entirety of the occurrence and he had the fortuitous opportunity of seeing that part of the occurrence of the

accused running away from the scene with M.O. 1, gun in his hand. He would say that he had come to Ramachandra Iyer''s well for the purpose of

taking bath. For a villager, like P.W. 3, it is but natural to have come for the purpose of taking bath, after the day''s hard work. Therefore, he is

also naturally witness for the purpose of seeing the accused running away from the scene with the weapon of offence. In such state of affairs, we

rather feel that the testimony of P. Ws. 1 to 3 are above reproach and beyond suspicion, as relatable to the occurrence.

This apart, the evidence of the direct witnesses, P. Ws. 1 and 2 is also corroborated, in ample measure, by the medical testimony available on

record, in the shape of the testimony of the doctor, P.W. 5, coupled with the postmortem certificate, Exhibit P. 7. The doctor would opine, in a

categorical fashion that M.O. 8. series pellets could have been shot by means of a gun from a distance and in such process, those pellets could

have got embedded in the body of the deceased.

For the reasons above, we are of the firm opinion that it was the hand of the accused, that was mainly responsible for the shooting of the

deceased with the gun (M.O. 1.) at or about the time of the occurrence, which resulted in the death of the deceased on the spot.

The next question that crops up for consideration is as to what is the offence that had been committed by the accused, on the facts and in the

circumstances of the case. The answer to such a question takes in the other prong of the argument of learned Counsel for the Appellant accused.

According to him, as already stated, the act of the accused would, if at all, amount to an offence, on the facts and in the circumstances of the case,

u/s 304 Part I IPC and definitely not u/s 302 IPC. To such an argument, we are unable to affix our seal of approval, on the facts and in the

circumstances of the case.

No doubt, the evidence on record as already indicated, points out that there was a wordy altercation between the accused and the deceased

some one hour prior to the occurrence. During the course of such wordy altercation, the deceased would appear to have in-directly indicated to

the accused that he would, sometime or other, finish him off. On hearing the same, the accused also reported and proclaimed that he would, on his

turn, see that somehow or other, the life of the deceased is put an end to at some point or other. Even at that juncture, the deceased appeared to

have told the accused that it would be better for him to die then itself instead of later at his hands. The accused, somehow or other, did not opt to

shoot at him at that juncture. He opted to shoot at him, as already indicated, an hour later, when the deceased was returning from the arrackshop,

in the company of P. Ws. 1 and 2. In such circumstances, it cannot at all be stated that there was any provocation sudden and grave enough for

the accused to come an hour later to shoot at the deceased by a dangerous weapon like the gun (M.O. 1.), while the deceased was returning from

the arrackshop. On receipt of the gunshot injury, the deceased also died on the spot. We are of the opinion that the act of the accused in shooting

at the deceased with a gun like M.O. 1 a dangerous weapon and that too at the chest a vulnerable portion of human anatomy is indicative of his

mind to cause the death of the deceased That apart, the accused is a shikari, a gruesome man in killing and shooting animals and birds with the gun

like M.O. 1. Therefore, the act of the accused in shooting at the deceased with the gun (M.O. 1) cannot at all be stated to be not one, not done

with the intention of committing the murder of the deceased. In this view of the matter, the act of the accused would, in our opinion, squarely fall

under Clause (1) of Section 300 IPC, thereby punishable u/s 302 IPC. As a consequence, the conviction and sentence of imprisonment for life, as

had been imposed upon the accused Appellant, by the Court below for an offence u/s 302 IPC cannot be stated to be not sustainable in law.

For the reasons as above, the appeal deserves to be dismissed and the same is accordingly, dismissed, confirming the conviction and sentence

of the accused, for an offence u/s 302 IPC as had been imposed by the Court below.