Sudalaimani vs State

M. Chockalingam, J.—Challenge is made to a judgment of the Principal Sessions Division, Tuticorin, made in S.C. No. 80 of 2008

whereby the sole accused/appellant stood charged under Sections 449 and 302 of IPC, tried, found guilty as per the charges and awarded five

years Rigorous Imprisonment along with a fine of Rs. 2000/- and default sentence u/s 449 IPC and 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 brother of the deceased Antonyammal. They were living at Arunthathiyar Street, Main Road, Mukkani. The younger sister of

Antonyammal was living in the same area lonely as her husband died a few years ago. The son and daughters of the said Antonyammal were all

married and living somewhere else. The families were under misunderstanding on the ground that the son of Antonyammal had an affair with the

sister of the accused. A few days prior to the date of occurrence, a sum of Rs. 500/- was missing from the house of Antonyammal, and she also

suspected the sister of the accused in that regard. She was go on sarcastically making remarks whenever she was taking water from the public tap.

Aggrieved over the same, on 29.8.2007 at about 2.30 P.M., when the deceased was in her house by sitting on the cot, the accused went inside

with an aruval and cut her on the neck. The same was witnessed by P.W.1. When P.W.1 raised a distressing cry, he fled away from the place of

occurrence.

(b) Immediately, P.W.1 proceeded to the respondent police station where P.W.11, the Sub Inspector of Police was present, to whom he gave a

complaint Ex.P1, at about 3.30 P.M. on the strength of which a case came to be registered in Crime No. 251 of 2007 under Sections 450 and

302 of IPC. The printed FIR, Ex.P14, was despatched to the Court.

(c) P.W.12, the Inspector of Police of that 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.P15. Then the inquest was conducted on the dead body of

Antonyammal in the presence of witnesses and panchayatdars, and Ex.P16 is the inquest report. Thereafter, the dead body was sent to the

Government Hospital along with a requisition for the purpose of autopsy.

(d) P.W.8, the Tutor in Forensic Medicine, Tuticorin Medical College, on receipt of the requisition, has conducted autopsy on the dead body of

Antonyammal and has issued a postmortem certificate, Ex.P8, with his opinion that the deceased would appear to have died of haemorrhage and

shock due to the heavy cut injury on the neck, and the death would have occurred about 12 to 24 hours prior to autopsy.

(e) Pending investigation, the accused was arrested on 31.7.2007 at about 3.30 P.M., when he came forward to give a confessional statement.

The admissible part of the same is marked as Ex.P4 pursuant to which he produced M.O.1, aruval, which was recovered under a cover of

mahazar. Then he was sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body, and also

the weapon of crime, M.O.1, aruval, which was recovered from the accused pursuant to the confessional statement, were sent for analysis by the

Forensic Sciences Department. Accordingly, they were subjected to, which brought forth two reports namely Ex.P12, the chemical analyst''s

report, and Ex.P13, the serologist''s report. On completion of investigation, the Investigator filed the final report.

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

marched 12 witnesses and also relied on 17 exhibits and 7 material objects. On completion of the evidence on the side of the prosecution, the

accused was questioned u/s 313 of Cr.P.C. 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 life imprisonment as referred to above, which

is the subject matter of challenge before this Court.

Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the occurrence, according to the

prosecution, has taken place at about 2.30 P.M. on 29.8.2007; that P.W.1 was marched as only eyewitness; that P.W.1 could not have seen the

occurrence at all; that the occurrence has taken place inside the hut, which was measuring 10 x 10 feet, and he has actually narrated all the injuries;

that at that time, P.W.1 could not have been inside the premises where the occurrence has taken place; that even according to him, he gave the

complaint before the police at about 3.30 P.M.; but he has candidly admitted that he has only signed a paper, and hence he did not know the

contents therein; and that under the circumstances, P.W.1''s evidence should have been rejected.

Added further the learned Counsel that the Investigator has come with a false claim that the accused was arrested on 31.7.2007; that though the

claim of the Investigator was supported by P.W.5, the Village Administrative Officer, P.W.1 has come with a contrary evidence that within a short

span of an hour from the time of occurrence, the accused was secured and was taken to the police station; and that under the circumstances, the

so-called arrest, confession and recovery of M.O.1 cannot but be false.

Added further the learned Counsel in the second line of argument that the accused was provoked by the circumstances, and there was

misunderstanding between the families on the ground that the son of Antonyammal had an affair and illicit intimacy with the sister of the accused;

that apart from that, four days prior to the occurrence, Rs. 500/- was missing from the house of Antonyammal; that the deceased was sarcastically

making remarks against the sister of the accused; that this was continuing everyday, because of which he was provoked and was having sustained

provocation; that in particular, when the remarks were made against his sister by Antonyammal, he got provoked and acted so; that under the

circumstances, the act of the accused cannot be termed as murder, but be a culpable homicide not amounting to murder, and this has got to be

looked into by this Court.

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 Antonyammal, the sister of P.W.1, was done to death in an incident that had taken place at about 2.30 P.M. on

29.8.2007. Following the registration of the case by P.W.11, the Sub Inspector of Police, the investigation was taken up by P.W.12, the Inspector

of police of the Circle. After the preparation of the inquest report, the dead body was sent for autopsy, and P.W.8, the Doctor, has conducted

autopsy and has given his opinion in Ex.P9, the postmortem certificate, that she died out of the cut injury on the neck which was fatal. The fact that

Antonyammal died out of homicidal violence was not disputed by the appellant before the trial Court or before this Court. Hence no impediment is

felt in recording so.

In order to substantiate the charges levelled against the appellant, the prosecution had only one witness who was examined as P.W.1. It is true

that P.W.1 was the brother of the deceased Antonyammal. On that ground, his evidence cannot be looked with suspicion, but before acceptance,

the test of careful scrutiny must be applied. Even after the application of the test, this Court is satisfied that his evidence has got to be accepted

because it inspires the confidence of the Court. According to P.W.1, at about 2.30 P.M. on 29.8.2007, when he was standing outside the hut of

Antonyammal measuring 10 x 10 feet, the accused got inside with an aruval and attacked her on the neck as a result of which she died immediately

and when he raised alarm, the accused fled away from the place of occurrence. Despite the cross-examination, the evidence of P.W.1 remained

unshaken. The contention put forth by the learned Counsel for the appellant that P.W.1, even according to his evidence, was standing outside the

hut, and hence, he could not have been an eyewitness cannot be accepted for the simple reason that it was a hut measuring 10 x 10 feet. P.W.1

has categorically stated that he was standing outside, and Antonyammal was the only person inside, and at that time, the accused got inside along

with an aruval, the weapon of crime, and cut her and caused her death instantaneously. Apart from that, the criminal jurisprudence does not look

for the quantity of evidence, but the quality of evidence. Once the evidence of P.W.1 inspires the confidence of the Court, there cannot be any

impediment to base a conviction on his evidence.

As rightly pointed out by the learned Counsel for the appellant, as far as the recovery of M.O.1, the weapon of crime, pursuant to the alleged

confessional statement made by the accused to the Investigator in the presence of P.W.5, the VAO, is concerned, it cannot be accepted for the

simple reason that P.W.1 has candidly admitted that the accused was secured and taken to the police station within an hour from the time of

occurrence. But, it is claimed by the Investigator that he was arrested only on 31.7.2007. In view of the evidence of P.W.1, the claim made by the

Investigator cannot be accepted. Hence the evidence of P.W.1 would suffice, in the considered opinion of the Court, in order to record a finding

that it was the accused who cut Antonyammall with the aruval and caused her death.

As far as the second line of argument is concerned, this Court is able to see force in the contention put forth by the learned Counsel for the

appellant. From the available evidence, it could be seen that both the families were under misunderstanding in view of the intimacy developed

between the son of Antonyammal and the sister of the accused, and the misunderstanding continued till the time of occurrence. Apart from that, 4

days just prior to the occurrence, an amount of Rs. 500/- was found missing from the house of Antonyammal, and she suspected the sister of the

accused, and she was talking ill of in view of her suspicion, and thus the accused was actually aggrieved over the same. Under the circumstances,

he has acted so. That apart, there is nothing indicated by the prosecution as motive for the accused to act so. Insofar as the illicit intimacy, there

was sustained provocation. As far as the sarcastic remarks made by Antonyammal that the sister of the accused/appellant has taken Rs. 500/-

from her house is concerned, he was provoked as a result of which he has acted so. Thus the act of the accused was neither intentional nor

premeditated, but due to the provocation, and it cannot be said to be one of murder, but culpable homicide not amounting to murder. This Court is

of the view that the appellant has got to be found guilty u/s 304 (Part I) of IPC, and a punishment of seven years Rigorous Imprisonment would

meet the ends of justice.

Accordingly, the conviction and sentence imposed by the trial Judge on the appellant u/s 449 of IPC are confirmed. But the conviction and

sentence of life imprisonment imposed by the trial Judge on him 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 imposed by

the trial Court will hold good.

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