Suresh Kumar vs State by The Inspector of Police

A.C. Arumugaperumal Adityan, J.—This appeal has been preferred against the judgment in S.C. No. 191 of 2000 on the file of I Additional

Sessions Judge, Dhamapuri at Krishnagiri. The accused, who is the brother''s son of one Lakshmi, permanently kept mistress of the deceased,

who had faced a charge of murder u/s 302 IPC, but was convicted u/s 304(ii) IPC and sentenced to undergo 7 years RI by the learned Sessions

Judge, is the appellant herein.

The committal magistrate, Judicial Magistrate No. II, Dhamapuri, after taking the charge sheet on file as PRC. No. 92 of 1999, had issued

summons to the accused and on his appearance furnished copies to the accused u/s 207 of Cr.P.C., and since the case is exclusively triable by the

Court of Sessions, the learned Judicial Magistrate Committed the case to the Court of Sessions u/s 209 of Cr.P.C.

The learned I Additional Sessions Judge, Dhamapuri at Krishnagiri, had framed charges u/s 302 IPC against the accused on his appearance and

explained and when questioned the accused pleaded not guilty. Before the trial Court P.W. 1 to P.W. 10 were examined, Ex.P.1 to Ex.P.16 were

exhibited and M.O. 1 to M.O. 2 were marked.

P.W. 1 is the ocular witness to the occurrence, who is having an electrical shop at Bommidi and he is related to the deceased. He would admit

that the deceased Abdul Rahim was having illicit intimacy with P.W. 2 - Lakshmi and both were residing in his garden house at Kottavur and on

14.2.1999 at about 4.45 pm he went to the garden house of the deceased at his request to prepare an estimate for providing electricity connection

in the said garden house of the deceased and while he was talking to P.W. 2-Lakshmi in the house, he saw the accused, who was present just

before his arrival to the said house, and on seeing him left towards the well and the deceased Abdul Rahim also left the house by saying that he will

come back after washing his face and that when he entered into the house to prepare the estimate regarding the electricity accessories required for

making electrical work in the house, he heard a distress call from Abdul Rahim, to respond he immediately rushed to the place of occurrence i.e.,

near the well followed by Lakshmi, who was at that time preparing tea in the kitchen. He would depose that the accused by saying that only if

Abdul Rahim dies, he will get the properties, pushed Abdul Rahim into the well followed by dropping two big granite stones into the well. When he

made an attempt to apprehend the accused, he criminally intimidated by saying that he (P.W. 1) will also met with the same fate and ran away from

the place of occurrence. Thereafter with the help of Noorbasha and others, he extricated the body from the well in a cot and preferred Ex. P.1-

complaint at about 7.00 p.m. on the same night with Bommidi Police, who came in the morning to the place of occurrence and enquired him. He

has identified M.O. 1 & M.O. 2 are the granite stones dropped by the accused in to the well at the time of occurrence after pushing down Abdul

Rahim into the well.

P.W. 2 - Lakshmi would depose that the accused is her brother''s son and that she was given in marriage some 28 years prior to the date of

occurrence to one Palaniswamy as a third wife, while the second wife Pavayee was alive and after the death of Palaniswamy his 5 acres of land

was divided between her and Pavayee in equal moities and enjoyed the same after the death of her husband Palaniswamy, her brother Periyasamy,

the father of the accused, came to Kottavur with his family. According to her, Abdul Rahim was taking care on her and he used to visit her house

and with the joint venture of Abdul Rahim, she had purchased the land at Kottavur and constructed the house there and began to live with Abdul

Rahim in the said house and that her brother Periyasamy was residing in 2 1/2 acres of land, which he got under partition with Pavayee after the

death of Palaniswamy Gounder. She would further depose that the garden at Kottavur and the house were purchased only in the name of the

deceased Abdul Rahim, who had no issues. According to her, on the fateful day, the accused came to her house and was talking to her sitting on

the varanda and at that time the deceased Abdul Rahim and P.W. 1 also came to the house in order to prepare the estimate for providing

electricity supply to the house. When Abdul Rahim left the house in order to wash his face, she heard a distress call from Abdul Rahim and

immediately she along with P.W. 1 came out of the house and saw the accused pushing down Abdul Rahim into the well and that when P.W. 1

went near the well in order to rescue Abdul Rahim, the accused criminally intimidated him by saying that if he comes nearer he will also met with

the same fate and with the help of Apsalkhan, Noor sahib, P.W. 1 retrieved the body from a help of a cot from the well and that P.W. 1 went to

the police station and preferred Ex. P.1 - complaint with the police. She has identified M.O. 3 as the dothi, M.O. 4 shirt worn by the deceased at

the time of occurrence. According to her, eight days prior to the occurrence, the accused enquired in whose name the properties stand and after

knowing that the properties are in the name of Abdul Rahim, she could notice changes in his facial expression.

P.W. 10 is the then Inspector of Police, Bommidi Police Station. According to him on 14.2.1999 at about 7.00 pm P.W. 1 appeared in the

police station and preferred Ex. P.1 complaint, which was registered under Bommidi Police Station Cr. No. 92 of 1999 u/s 302 IPC. Ex. P.11 is

the copy of the FIR. He has dispatched the express FIR to the concerned official including the Judicial Magistrate. Thereafter, he had proceeded

to the place of occurrence at 8.15 pm and stayed there itself and on the next morning i.e., on 15.2.1999 at about 6.30 am, he had prepared the

observation mahazar Ex. P.2 in the presence of P.W. 3 and another witness. He had drawn Ex. P.12 - rough sketch in the presence of the same

witnesses. He had conducted inquest on the corpse of the deceased in the presence of panchayatdars between 8.30 am and 10.00 am. Ex. P.13 is

the inquest report. He has examined the witnesses and recorded their statements. He had sent the corpse for autopsy through P.W. 9, who had

handed over the corpse to the doctor P.W. 6, who had conducted autopsy and issued Ex. P.7 - postmortem certificate. The doctor has opined

that due to asphyxia due to drowning the deceased would have died 18 to 20 hours prior to autopsy. Ex. P.9 is his final report.

P.W. 7 is the doctor, who had examined the accused on 16.2.1999 at ahout 11.20 pm in the government hospital Dharmapuri and issued Ex.

P.10 copy of the accident register. Thereafter, the doctor has noticed three simple injuries on his right forearm measuring 3 x 2 x 1/2 cm and on the

left hand measuring 2 x 2 x 1/2 cm and on the fore head 2 x 2 x 1/2 cm. After the autopsy P.W. 9 had recovered the wearing apparels of the

deceased and handed over the same to the Investigating Officer.

P.W. 4 is the VAO of Bommidi village, in whose presence P.W. 10, after arresting the accused on 15.2.1999 at about 12.00 noon, recorded

the voluntary confession statement of the accused. The admissible porition of the confession statement is Ex. P.14, on the basis of which, M.O. 1

& M.O. 2 granite stones used by the accused at the time of the occurrence were recovered from the well under Ex. P.3 - mahazar in the presence

of P.W. 4. P.W. 5 is the photographer, who took Ex. P.4 photoes of the corpse and Ex. P.5 are the negatives. P.W. 8 is the FIR constable, who

had delivered the express FIR to the Court at 10.00 am on 15.2.1999, after staying in the Judicial Magistrate court on the prevision night.

P.W. 10 had sent the material objects connected with this case for chemical examination through the Judicial Magistrate. Ex. P.15 is the letter of

requisition. After following the formalities P.W. 10 had filed the charge sheet against the accused on 6.6.1999 u/s 302 IPC.

When incriminating circumstances were put to the accused u/s 313 of Cr.P.C., he denied his complicity with the crime. No evidence was let in

on the side of the accused by way of defence. After going through the evidence both oral and documentary, the learned trial Judge has convicted

the accused u/s 304(ii) IPC and sentenced to undergo 7 years RI, which necessitated the accused to prefer this appeal.

Now the point for determination in this appeal is whether the conviction and sentence by the learned trial judge in S.C. No. 191 of 2000 u/s

304(ii) IPC, is sustainable for the reasons stated in the memorandum of appeal.

The Point : Heard the learned Counsel appearing for the appellant Mr. A.K. Kumaraswamy and the learned Additional Public Prosecutor Mr.

V.R. Balasubramanian and considered their respective submissions.

12(a) Both the ocular witnesses P.W. 1 & P.W. 2 would cojently deposed before the trial Court that they saw when the accused pushing down

the deceased Abdul Rahim into the well at the time of occurrence. The motive suggested by P.W. 2, who is none other than the aunt of the

accused, is that to grab at the property of 2 1/2 acres of land which was allotted in a partition to P.W. 2 after the death of her husband

Palaniswamy Gounder between her and the second wife of Palanysamy Gounder and also to grab at the house and the land at Kottavur village,

where the occurrence had taken place, the accused had murdered Abdul Rahim, with whom P.W. 2 was having illicit intimacy. But both P.W. 1

and P.W. 2 would depose that immediately before the place of occurrence they heard the distress call from Abdul Rahim due to the assault made

by the accused near the well. So it is clear from the evidence of P.W. 1 & P.W. 2 that immediately before the occurrence i.e., pushing Abdul

Rahim into the well by the accused, there was some quarrel between Abdul Rahim and the accused, which resulted in the accused pushing down

Abdul Rahim into the well. The evidence of the doctor P.W. 6, who had conducted postmortem on the corpse of the deceased, would go to show

that the deceased would have died due to asphyxia due to the drowning. Ex. P.9 is his final report. Ex. P.7 is the postmortem report. Only under

such circumstances, the learned trial judge has come to the correct conclusion that the accused is liable to be convicted only u/s 304(ii) IPC and

accordingly convicted and sentenced the accused u/s 304(ii) IPC.

12(c) At this juncture, the learned Counsel for the appellant Mr. A.K. Kumaraswamy would represent that the age of the victim was 73 at the time

of the occurrence and the accused is aged 23 years and that the accused is now studying in the first year in D-Pharmacy course at Coimbatore

College of Pharmacy Erode in the academic year 2006-2007. He has also produced the collage fees certificate relating to the accused. The

learned Counsel would submit that taking into consideration the facts and circumstances that the accused is now a student of D-Pharmacy and also

the fact that even after the occurrence the accused cannot get the property neither of the deceased Abdul Rahim nor from P.W. 2 as a legal heir,

some leniency may be shown on the sentence. The learned Counsel would further submit that the accused was in prison for nearly three months

and the remaining sentence may be converted into a fine so that the accused can pursue his studies. Heard the views of the learned Additional

Public Prosecutor also on this point, who has no serious objection for modifying the sentence in the above lines. Point is answered accordingly.

In fine, the appeal is dismissed confirming the conviction passed by the learned trial Judge in S.C. No. 191 of 2000 on the file of the I

Additional Sessions Judge, Dharmapuri at Krishnari, u/s 304(ii) IPC, but the sentence alone is modified to that of the period already undergone

and a fine of Rs. 25,000/- in default to undergo one year SI instead of 7 years RI. Time for payment of fine amount is 4 weeks from this date.