Sukkuru vs State

R. Balasubramanian, J.—The first accused in Sessions Case No. 22 of 1990 on the file of the Court of Sessions, West Thanjavur, is the Appellant in this appeal. He was charged for offences under Sections 302 and 324 (2 counts) of I.P.C. His wife Minnalkodi was tried along with him as A2 for an offence u/s 302 read with Section 34 of I.P.C. At the completion of the trial, the first accused was alone found guilty for offences under Sections 302 and 324 (2 counts) of I.P.C. and sentenced to undergo imprisonment for life for the former offence and six months rigorous imprisonment for each count for the latter offence and sentences are directed to run concurrently. The second accused was acquitted of the charges levelled against her. The correctness of that judgment is in challenge in this appeal.

Heard Mr. N. Doraisamy, learned counsel appearing for the Appellant and Mr. C.M. Gunasekaran, learned Government Advocate appearing for the Respondent.

The brief facts of the prosecution''s case is as follows:

(a) P.Ws.1 to 4 are residents of Karuppur village. The deceased in this case is the younger brother of P.W.1. West of P.W.1''s house, the first accused has his hayrack. That has resulted in strained relationship and quarrel between P.W.1 and his supporters on the one hand and A1 and his group on the other hand. As a result of this prior enmity, at about 10.00 p.m. on the night of 29.05.1988 when P.W.1 was going to feed his cattle by giving some hay, the second accused, looking at P.W.1 had asked a discourteous manner as to who is going? P.W.1 has replied as to how the second accused can talk in an irresponsible manner. The first accused immediately beat on the back of P.W.1 with a stick. The deceased and Kannappan, P.W.2, who is the son-in-law of P.W.1 also arrived there. Accused 1 and 2 go to their house. The second accused mixed some chilli powder in a tumbler of water and poured it on the deceased and P.W.2 which caused an irritation in the eyes of the deceased and P.W.2. The first accused with the weapon of offence in his hand stabbed on the left side chest of the deceased. P.W.2 was also attacked on the right forearm by A1. When P.W.1 neared them, the first accused also attacked on the left side neck of P.W.1 P.Ws.3 and 4 also arrive and saw the entire occurrence. P.W.1 went to the police station and lodged the information.

(b) P.W.5 is the Grade 1 constable and he was on duty at the jurisdiction police station at 11.30 p.m. on that day, P.Ws.1, 2 and injured Ayya Kannu appeared at the police station and P.W.1 gave the information which was registered by P.W.5. Ex.P.1 is the information which was registered in Crime No. 153 of 1988 for offences under Sections 323 and 324 of I.P.C Ex.P.2 is the printed first information report. The material records were sent to the Court as well as to the higher officials. P.W.8 is the head constable. On receipt of the material records he conducted investigation. He went to the scene of occurrence and prepared Ex.P.3, the Observation Mahazar, and Ex.P.9, the plan. M.Os.4 and 5 were recovered under a cover of Mahazar, Ex.P.4, from the scene of occurrence. On coming to know that the injured Ayyakannu had died, the section of offence was altered into one u/s 302 of I.P.C. Ex.P.10 is the altered first information report.

(c) P.W.9 was the duty Doctor in the Government Hospital. Thirupananthal, on 30.05.1988. He examined P.W.1 and found 3 injuries on him. Ex.P.11 is the accident register and Ex.P.12 is the wound certificate for P.W.1. The following injuries were found on the person of P.W.1:

Injuries: 1. Incised injury 1 cm x 1 cm x 1/2 cm on the left side of the upper part of the neck. Fresh bleeding present.

Contusion 4 cm x 4 cm on the left interscapular area.

Contusion 2 cm x 2 cm on the right thumb.

(d) At 2.45 p.m. on that day, P.W.9 examined P.W.2 and found certain injuries on his forearm. P.W.9 was informed that P.W.2 had sustained the injuries at the hands of a known person. Exs.P.13 and 14 are the accident register and wound certificates respectively for P.W.2. The following injuries were noticed on P.W.2:

Injuries: Incised injury 2 cm x 1 cm x 1/2 cm on the right upper arm neck shoulder joint. Fresh bleeding present.

P.W.9 was of the opinion that the injuries found on P.Ws.1 and 2 could have been caused in the manner and at the time alleged with the weapon of offence shown by the prosecution. P.W.10 was the Assistant Surgeon in the Government Hospital at Kumbakonam. He discharged P.W.1 on 06.06.1988. Ex.P.15 is the discharge certificate relating to P.W.1.

(e) P.W.14 is the Investigating officer and on receipt of the express First Information Report in this case at 8.00 a.m. on 30.05.1988, he went to the Government Hospital, Thirupannanthal, and conducted inquest over the dead body of the deceased. Ex.P.21 is the inquest report. He sent Ex.P. 16 the requisition to conduct post mortem through P.W.11, the police constable, P.W.12 is the Doctor at the Government Hospital at Kumbakonam. On receipt of the requisition to conduct post mortem, he commenced post mortem on the body of the deceased at 3.15 p.m. on 30.5.1988 He found the following symptoms on the person of the deceased:

An incised wound over left side of chest 2" above nipple 2" x 1/2" x 5" in depth (inch) Int. Exam: Thorax: contains length breadth 500 ml. of blood Heart. 260 G (Thoracic cavity) left atrium - punctured wound 2 cm x 2 cm entering the chambers communicating with external wound chambers empty.

Lungs weight Rt. 520 G) Pale an incised Lt.450 G) wound 2 cm x 2 cm x 1/2 cm upper lobe of left lung. The wound is communicating with external wound. Hyoid, Intact stomach 300 ml. of partly digested food particles. Liver - Pale 1500 G. Spleen - pale 150 G. Kidney wt. 150 G. pale. Intestines pale. Head Membranes intact. Brain 1300 G. pale.

Ex.P.17 is the post mortem certificate. The Doctor is of the opinion that the deceased would appear to have died due to shock and haemorrhage due to injuries to vital organs viz. heart and lung about 12 to 15 hours prior to post mortem. The injuries noticed on the body of the deceased are sufficient, in the ordinary course of events to cause death.

(f) PW13 is the Magistrial Clerk, On receipt of the requisition from the Investigating Officer, as an enclosure to Court''s letter. Ex.P. 19 he sent the case properties for chemical analysis. Exs.P.20 and 21 are the chemical examiner''s report and serologist''s report. P.W.14 went to the scene of occurrence at 2.00 p.m. on 30.05.1988 and in the presence of P.W.8 verified the Observation Mahazar already prepared. The accused were not available. On 01.06.1988, at about 2.00 p.m. the accused were arrested near a Primary Co-operative Bank in the presence of P.W.7 and another. On examination, the accused gave a voluntary confession statement, the admissible portion of the voluntary confession statement of A1 is Ex.P.5 and likewise the admissible portion of the voluntary confession statement of A2 is Ex.P.7. The accused took the witnesses and the police to the motor shed of one Alagar and produced MO1 which was found concealed therein. It was recovered under a cover of Mahazar which was attested by witnesses. The second accused took the witnesses and the police and produced M.Os.2 and 3 which were recovered under a cover of mahazar, Ex.P8. After examining the Doctors again and recording their statements, the Investigating Officer filed the final report before Court on 13.10.1988, after completing the entire investigation. When the accused were questioned u/s 313 of Code of Criminal Procedure on the basis of the incriminating materials made available against them, they pleaded that they are innocent and that the case has been foisted upon them. No witness was examined on their side.

Mr. N. Doraiswamy, learned Counsel appearing for the Appellant would contend that the evidence of P.Ws. 1 to 3 cannot be relied upon as they are highly interested and related to the deceased. There is a delay in lodging the information to the police and there is a consequential delay in sending the material records to the Court. Lastly, the learned Counsel for the Appellant would contend that assuming the entire case of the prosecution as true, yet. Exception 4 to Section 300 of I.P.C. stands attracted. In addition to that, the learned Counsel for the Appellant would also submit that there was a serious danger to the property rights of the accused and in protecting that right, the occurrence had taken place. Therefore, at best it can be stated that the accused had acted in self-defence.

The learned Government Advocate would respond to these arguments by stating that P.Ws.3 and 4 are independent witnesses and there is no reason to disbelieve them. The evidence of P.Ws.1 and 2 cannot be rejected solely on the ground that they are thickly related not only to each other, but also with the deceased. At best their evidence deserves to be scrutinised with caution. The learned Government Advocate would also fairly state that the materials available on record do show that there was some quarrel between the accused on the one hand and the prosecution party on the other hand. However, he would state that those materials do not satisfy the requirement of Exception 4 to Section 300 of I.P.C. The Government Advocate would also state that there was no reasonable apprehension in the mind of the accused regarding the safety to their property and therefore, the case of the accused that they acted in self-defence is not sustainable.

Having regard to the arguments of the learned Counsel on either side, we perused the entire materials available on record. It is clear from the records that west of the house of the first accused there is a place of land where hayrick is stored. The deceased is the younger brother of P.W.1. The deceased is the younger brother of the father in law of P.W.2. The evidence shows that the occurrence was around 10.00 p.m. on 29.05.1988. P.W.1 was on his way to feed his cattle by giving some hay. It also appears that he was passing the house of the accused. At that time, the evidence shows that A2 asked P.W.1, in highly disrespectful manner, as to who is going. Naturally, P.W.1 replied as to how A2 can talk in such a discourteous manner. The evidence of the prosecution, thereafter, is to the effect that the first accused beat on the back of P.W.1 with a stick. Thereafter, both the accused went inside their house and while returning A2 came back holding a tumbler of water mixed with chilli powder. She splashed the chilli powder mixed water on Ayyakannu, the deceased, and on P.W.2, which caused some irritation in their eyes. The evidence of P.W.1 would show that as P.W.1 was being beaten on his back by the first accused with a stick, the deceased and P.W.2 came to the scene of occurrence. As the second accused was splashing the chilli powder mixed water on the deceased and P.W.2, the first accused is stated to have come there armed with a weapon. Following the splashing of the chilli powder mixed water by A2, the first accused stabbed on the left side chest of the deceased and also caused an injury on the left forearm of P.W.2. As P.W.1 neared him, he was also stabbed on the left side neck by the first accused. Thereafter, the first accused ran away the scene of occurrence. From Ex. P. 1 we find that the entire case of the prosecution had been set out in a clear manner. The police station is about 3 kms. from the scene of occurrence. As could be seen from Ex.P.2 the first information report, originally, the crime was registered only for offences under Sections 323 and 324 of I.P.C. Therefore, the Investigating Agency cannot be found fault with in not sending the material records to the Court immediately. However, when the section of offence was altered into one u/s 302 of I.P.C., the material records moved in quickly from place to place and reached the Court without any delay. As the first accused was perpetrating the crime on the deceased as well as on P.Ws.1 and 2 P.Ws.3 and 4, the independent witnesses, arrived at the scene of occurrence. Their evidence shows that they knew not only the prosecution party but also the accused as well. On a perusal of the evidence of P.Ws.3 and 4, we find that they have nothing to do with either the prosecution party or the accused. Their evidence clinchingly shows that they have also witnessed the entire occurrence. Therefore, we see no reason at all to disbelieve the evidence of P.Ws.3 and 4. Coming to the evidence of P.Ws.1 and 2, we find that though they are closely related inter se as well as to the deceased, yet, their evidence cannot be discredited solely on that ground. P.Ws.1 and 2 have been injured and they both were examined by the Doctor immediately thereafter. Exs.P.11 and P.13 are the accident registers in respect of P.Ws.1 and 2 respectively and Ex.P.12 and P.14 are the wound certificates in respect of P.Ws.1 and 2 respectively. The medical evidence of the Doctor, who examined them, coupled with other evidences do establish beyond doubt that P.Ws.1 and 2 have sustained injuries. The oral evidence of P.Ws.1 and 2 by itself and read in the context of the oral evidence of P.Ws.3 and 4 would show that it is first accused, who caused the injuries on P.Ws.1 and 2. P.W.12 is the Doctor, who did post mortem on the body of the deceased. The post mortem certificate is Ex.P.17 The medical evidence referred to above establishes beyond doubt that Ayyakannu died due to homicidal violence The oral evidence of P.Ws.1 to 4 establishes beyond doubt that it is the first accused, who caused the fatal injury on the deceased. Therefore, we are of the opinion that the conclusion arrived at by the learned Sessions Judge holding the first accused guilty of the offences referred to above, viz. Section 302 and 324 (2 counts) can definitely be sustained on the basis of the legal evidence on record. We are entirely in agreement with the learned Sessions Judge in holding that it is the first accused who is responsible for causing the injuries to P.Ws.1 and 2 and the deceased as well.

Coming to the question as to for what offence, the first accused can be found, guilty so far as his conviction u/s 324 (2 counts) of I.P.C. is concerned. P.Ws.1 and 2 are the injured witnesses. The medical evidence establishes the injuries sustained by them. Besides the oral evidence of P.Ws.1 and 2, the oral evidence of P.Ws.3 and 4 is also there. Therefore, no interference is called for so far as the conviction of the first accused u/s 324 (2 counts) of I.P.C. is concerned.

Coming to the question of the conviction of the first accused for the offence u/s 302 of I.P.C. is concerned, we see from the records the following substantial materials:

the accused is storing his hay in a place of land west of his house: there is serious dispute between P.W.1 and the deceased on the one hand and the accused on the other hand as to who is the owner of the land, each asserting title in themselves; P.W.1 admitted that he has no revenue records in his name or in the name of his younger brother, deceased in this case, for that land; whereas the first accused is hiving revenue records; the first accused put a fence in that property if the fence is there, it is not possible for P.W.1 and his younger brother to have a direct access to the other properties of P.W.1 and his family members; on the night of the occurrence P.W.1 was found removing the fence so put up by the first accused it was around 10.00 p.m. on that night; A2 had questioned as to who was going by that side (in a discourteous manner); P.W.1 replied questioning A2, as to how she could talk in such a disrespectful manner; the first accused had only beaten P.W.1 at that stage on his back with a stick; he was not armed with any other, deadly weapon; P.W.2 arrives at the scene then there was a quarrel followed by exchange of words regarding their respective claim to the property; accused 1 and 2 enter their house; A2 conies with a tumbler of water mixed with chili powder which she splashes on the deceased and P.W.2; it causes irritation in their eyes; P.Ws.3 and 4 arrive at the scene; A1 picks up the weapon of offence and stabs once on the left side chest of the deceased.

In this context, it is useful to refer to the written statement filed by the first accused when he was questioned u/s 313 of Code of Criminal Procedure. There, more or less, he had taken a stand in that statement which is in line with the materials which we have culled out as above, from the evidence of P.W.1.

It is also seen that the convicted accused and the acquitted accused have reached the police station earlier than the prosecution party; the prosecution party goes to the police station only later on and thereafter the case came to be registered. P.W.1 would categorically admit that the occurrence had taken place only when he was removing the fence put up by the first accused in the property which he claims to be his. His evidence further shows that the wife of P.W.1 and A2 were engaged in a wordy quarrel for half an hour.

These materials on the face of it do show that something went on between the prosecution party on the one hand and the accused on the other hand before the accused caused the fatal attack on the deceased. The materials noticed above clearly show that there was no premeditation on the part of the first accused: there was a sudden fight: there was a heat of passion on that sudden quarrel and in the midst of such circumstance, the accused had caused the fatal blow on the body of the deceased. Records do not show that the first accused had taken any undue advantage or acted in any cruel manner while he caused the fatal blow on the deceased in this case. In addition to this, to our mind, it also appears that the accused had every apprehension, in their mind about the safety to their property. The evidence shows that P.W.1 was removing the fence put up by the first accused. Therefore, even alternatively, it can be said that the first accused had definitely acted in excess self-defence. It cannot be said that the first accused had no right to protect his property. However, while protecting his property, he should not have acted in excess of self-defence available to him.

So looking from any angle, we are of the considered opinion that the conviction of the first accused u/s 302 of IPC, cannot be sustained and he has to be instead convicted only for an offence u/s 304 Part I of IPC.

Accordingly while confirming the judgment under challenge and as far as conviction and sentence imposed on the first accused for the offence u/s 324 (2 counts) of IPC we are inclined to modify the conviction of the first accused for the offence u/s 302 of IPC and instead find him guilty for an offence u/s 304 Part I of I.P.C. and sentence him to undergo rigorous imprisonment for a period of 7 years. On the facts noticed above, we are of the opinion that justice does not require any fine amount to be imposed on the convicted first accused. The sentences as imposed by this Court is directed to run concurrently. The appeal is accordingly disposed of.

It is reported to us that the accused is still in jail. The Registry is therefore directed to send the operative portion of this judgment to the jail authorities forthwith so that the accused would be set at liberty forthwith if he is otherwise not required in connection with any other case.