V. Sasi vs State

M. Chockalingam, J.—Challenge is made to the judgment of the learned Principal Sessions Judge, Kanyakumari Division at Nagercoil made in S.C. No. 111 of 1998, whereby the appellant/sole accused faced a charge u/s 302 IPC and on trial, he was found guilty as per the charge and awarded life imprisonment.

The short facts necessary for the disposal of this appeal can be stated thus:

a) The appellant/accused is the father of the deceased Salu. P.W.2 is the wife of P.W.1. One month prior to the occurrence, they came as tenants in the house of the accused. The accused is residing in the opposite house. On 31.10.1997 at about 6.00 p.m., P.W.1 came back to his house after doing his work. At that time, In the accused house, the deceased Salu was lying in the Cot. The accused raised objection for the same. Therefore, there arose a quarrel between them. At that time, P.W.1 and one Santhosh intervened and pacified the situation and the deceased left the place.

b) Thereafter, at about 8.00 p.m., the deceased came again, got into the house of the accused, who is his father and quarreled with him, demanding a part of the house. When the quarrel was going on, the accused took the knife, M.O.2 and stabbed the deceased on different parts of his body. The deceased fell down and within 5 minutes, he died. P.Ws.1 and 2 witnessed the occurrence and P.W.3 saw the accused, standing with the knife. The accused fled away from the place of occurrence.

c) P.W.1 proceeded to the respondent police station and gave Ex.P.1, the report to P.W.5, the Sub Inspector of Police. On the strength of the same, P.W.5 registered a case in Crime No. 853 of 1997 u/s 302 IPC. Ex.P.6, the F.I.R. was despatched to the court along with Ex.P.1.

d) P.W.9, the Inspector of Police of the said circle, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.13, the rough sketch. The place of occurrence was photographed by P.W.9. M.O.8 (series) are the negatives and M.O.9 (series) are the photos. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.14, the inquest report. Following the same, the dead body was sent to the Kulasekaram Government Hospital for the purpose of post-mortem.

e) P.W.6, the Doctor attached to the Kulasekaram Government Hospital, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained.

f) Pending investigation, P.W.9 arrested the accused in the presence of the witnesses. The accused voluntarily came forward to give a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.4. Pursuant to the same, he produced M.O.2, knife, which was recovered under a cover of mahazar. The accused was sent for judicial remand. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and the M.O. recovered from the accused were sent for chemical analysis by the Forensic Science Department, which resulted in two reports, namely Ex.P.11, the Chemical Analyst''s report and Ex.P.12, the Serologist''s report. On completion of the investigation, the Investigating Officer has filed the final report before the concerned Judicial Magistrate.

The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 9 witnesses and also relied on 14 exhibits and 9 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. On the side of the defence, one witness was examined as D.W.1, but no documents were marked. The trial court, after hearing the submissions made and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and entered into the judgment of conviction and sentence, which is the subject matter of challenge before this Court.

The learned Counsel appearing for the appellant would submit that the prosecution has miserably failed to prove its case and to bring home the guilt of the accused; that according to the prosecution, P.Ws.1 and 2 and one Santhosh have witnessed the occurrence; that the said Santhosh, who was cited as a witness, was not examined before the court; that so far as P.W.2 was concerned, P.W.2 has categorically admitted that after the occurrence was over, she came out and witnessed the dead body; that so far as P.W.1 was concerned, the evidence of P.W.1 remained uncorroborated and his evidence was self contradictory; that P.W.1 could not have seen the occurrence at all and thus, the lower court has not considered all the aspects of the matter; that the occurrence has taken place at about 8.00 p.m. on 31.10.1997; that the complaint was given before Kulasekaram Police Station at 10.00 p.m.; that it was P.W.5, who received the complaint and registered the case; that though Ex.P.1 report and Ex.P.6, the F.I.R. were despatched to Judicial Magistrate, Padmanabhapuram, they reached the Judicial Magistrate, Nagercoil in the next day morning and thus, there was a delay from 10.00 p.m. to 7.00 a.m.; that the Constable, who took the F.I.R., was not examined and thus, the delay in despatching the F.I.R. to the court was not explained in any way; and that it would tell upon the case that the case was registered subsequently with all embellishments and improvements.

Added further the learned Counsel that in the instant case, the fact that there was an inordinate delay in the F.I.R. reaching the court and the evidence of P.W.1 remained uncorroborated would indicate that the prosecution has not proved its case; that the alleged arrest, confessional statement and the recovery of weapon of crime were all nothing, but an introduction to strengthen the prosecution case, if possible, but in vain; that even assuming that the prosecution has proved the fact that it was the accused, who stabbed his son to death, the evidence would indicate that the accused has acted with sustained provocation; that it would be quite clear from the testimony of the witnesses that the deceased was demanding partition of the property and was torturing his father; that at about 6.00 p.m. on the date of occurrence, there was a quarrel between the accused and the deceased and it was pacified and the deceased left the place; that again at about 8.00 p.m., the deceased came back and it was the deceased, who quarreled with his father, demanding partition of the property; that due to quarrel and provocation, the father, who could not tolerate the same, has stabbed the deceased and thus, there was neither intention nor premeditation, but he has acted in a spur of moment and hence this legal aspect of the matter has got to be considered by the Court.

The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.

It is not in controversy that the son of the accused was done to death in an incident that took place at about 8.00 p.m. on 31.10.1997 in front of the house of the accused. Following an inquest conducted by P.W.9, the Inspector of Police, the dead body of the deceased was subjected to post-mortem by P.W.6, the Doctor, who has given his opinion in Ex.P.8, the post-mortem certificate that the deceased died out of shock and haemorrhage due to the injuries sustained. The fact that the deceased died out of homicidal violence was not the subject matter of controversy before the trial court and hence without any impediment, it could be recorded so.

In order to substantiate the fact that it was the accused who stabbed the deceased, the prosecution examined three witnesses, as occurrence witnesses. It is true, P.W.2 has stated that when she came out of the house, the occurrence was over. The evidence of P.Ws.2 and 3 was available to the prosecution to an extent that they found the accused, standing with the knife in front of his house, where the dead body was found. P.W.1 has categorically stated that there was an incident at 6.00 p.m., in which there was a quarrel between the father and the son and that he along with one Santhosh intervened and pacified the situation and the deceased left the place. At about 8.00 p.m., the deceased again came back and demanded partition of the property and there arose a quarrel between the accused and the deceased and in that process, the accused took the knife M.O.2 and stabbed the deceased. The evidence of P.W.1 coupled with the evidence of P.Ws.2 and 3, who witnessed the accused along with the knife at the time and place of occurrence, would be pointing to the guilt of the accused, leaving no doubt in the mind of the court. Despite cross examination in full, the evidence of those witnesses remained intact and unshaken. Their evidence stood fully corroborated with the medical evidence.

Yet another circumstance against the appellant is the recovery of M.O.2, knife pursuant to the confessional statement made by him and thus, all would point out the nexus of the accused with the crime. All put together would suffice to hold that it was the accused who stabbed the deceased with knife.

So far as the second line of argument that the act of the accused would not attract the penal provisions of murder is concerned, the court is able to see sufficient force in the contention put forth by the learned Counsel for the appellant. In the instant case, even according to the evidence of P.W.1, an eyewitness, there was an incident that took place at about 6.00 p.m., in which the son, namely the deceased, quarreled with his father. Again at about 8.00 p.m., the deceased came and demanded partition of the properties and thus, he quarreled with his father. It was the deceased, who came to the house of the accused and quarreled with him. At that time, as rightly pointed out by the learned Counsel for the appellant, the father, who could not tolerate the torture of his son and being provoked, took the knife and stabbed the deceased. Thus, it was neither intentional nor premeditated, but at the spur of moment and due to provocation, he has acted so and hence the act of the accused would not attract the penal provisions of murder, but it would be one culpable homicide, not amounting to murder. Therefore, the act of the accused would attract the penal provision of Section 304(I) IPC and awarding a punishment of 7 years R.I. would meet the ends of justice.

Accordingly, the conviction and sentence imposed on the appellant u/s 302 IPC are set aside and instead he is convicted u/s 304(I) IPC and sentenced to undergo seven years R.I. The sentence already undergone by him is ordered to be given set off. The concerned Sessions Judge shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence, if he has not been secured and sent to jail in compliance of the order of this Court, dated 11.03.2008.

With the above modification in conviction and sentence, this criminal appeal is dismissed.