Veerapandian @ Poonai vs The State

M. Chockalingam, J.—Trial Court viz., Additional Sessions Division, Fast Track Court No. 2, Tirunelveli dated 25.6.2009 made in S.C. No. 315 of 2005 whereby the sole accused/appellant stood charged, tried and found guilty of the charge under Sections 341 and 302 of the IPC and awarded a fine of Rs. 500/- (Rupees five hundred only), in default, to undergo one week simple imprisonment u/s 341 of the IPC and life imprisonment and a fine of Rs. 2,000/-, in default to undergo six months rigorous imprisonment.

The short facts that are necessary for the disposal of this appeal can be stated as follows:

(i) PW.1 is the wife and PW.2 is the brother of the deceased. Both the deceased and appellant were painters by profession. The deceased informed PW.1 that one Veerapandi of the Thenmalai had illicit intimacy with Parameswari, wife of the accused. The accused/appellant came to know that the said Veerpandi misbehaved with his wife and thus, he got grudge against Veerapandi. On the date of occurrence, that was on 3.6.2005 at about 3.45 p.m., PW.1 and PW.2 and her husband were sitting outside the house and chatting and at that time, the accused/appellant came with an aruval and questioned whether Veerapandi came over there. When he received the reply in negative, he was about to move from there. The deceased also took his two wheeler and told PW.1 and PW.2 that he was proceeding to Sivagiri. The deceased went to a nearby petty shop, situated nearby his house and purchased a cigarette and when about to proceed, the accused informed the deceased that he was to attack the said Veerapandi. The deceased informed him not to do so and if he got anything that could be talked out. On being provoked by the words, the accused attacked the deceased on different parts of the body and caused instantaneous death. The same was witnessed by PWs.1 to 4 and the accused/appellant run away from the place of occurrence. PW.1 took him to the Government Hospital, Sivagiri where he was declared dead.

(ii) Then PW.1 proceeded to the respondent police station and gave the report Ex.P.2 to PW.8 Head Constable, who was on duty in the respondent Police Station and on the strength of which, the case came to be registered under Sections 341 and 320 of the IPC in Crime No. 120 of 2005. Express FIR Ex.P.9 was dispatched to the Court.

(iii) PW.10, the Inspector of Police of the Circle took up investigation, proceeded to the spot, made an inspection and prepared an Observation Mahazar Ex.P.3 and one Rough Sketch Ex.P.11. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an Inquest Report Ex.P.12 and has also recovered Material Objects from the place of occurrence and the dead body was photographed and photos were marked as MO.12 (Series). The dead body was sent for the purpose of Post-Mortem.

(iv) On the request made by the Investigating Officer, PW.7 Doctor, attached to the Government Hospital, Sivagiri, conducted Post-Mortem on the dead body of the deceased and gave a report in Ex.P.8 wherein she has opined that the deceased died out of shock and haemorrhage due to the injuries sustained, 16 - 24 hours prior to post-mortem.

(v) Pending investigation, the accused was arrested on 5.6.2005 and he gave a confessional statement and the admissible portion of which was marked as Ex.P.5, recorded in the presence of witnesses. Pursuant to the confession, he produced MO.1 Aruval, and Blood Stained clothes and the same were recovered from him and then, he was sent for judicial remand.

(vi) On completion of the investigation, the investigating officer filed a final report. The case was committed to the Court of Sessions. Necessary charge was framed against the accused.

In order to substantiate the charge leveled against the accused, the prosecution examined 10 witnesses and relied on 17 Exhibits and 13 M Os. On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 Code of Criminal Procedure on the incriminating circumstances found in the evidence of the prosecution witnesses, which was denied on the part of the accused. Neither defence witness was examined nor document was marked on the side of the defence. The trial Court after hearing the arguments advanced by either side and on considering the materials available on record, took the view that the prosecution has proved its case beyond reasonable doubts in respect of the charge of murder apart from the charge of wrongful restraint and found the accused guilty of the charges.

Advancing the arguments on behalf of the accused/appellant, the learned Counsel appearing for the appellant would submit that-

(i) in the instant case, the occurrence had taken place at 3.45 p.m, on 3.6.2005 but the complaint was given at 7.30 p.m.,

(ii) PWs.1 to 4 were claimed by the prosecution as eye-witnesses but PW.3 and PW.4 have turned hostile.

(iii) PW.1 was the wife and PW.2 was the brother of the deceased and there was a lot of discrepancies in their evidence. It would be quite clearly an indicative of the fact that they could not have witnessed the occurrence at all. They have categorically deposed that PW.1 and PW.2 were actually in their house when the accused/appellant came with the aruval and it is highly impossible when the deceased started in a two wheeler and had followed him.

(iv) Apart from that, the sketch does not show the petty shop, nearby which the occurrence was taken place near the house of the deceased and thus, it would be quite clear that PW.1 and PW.2 could not have seen the occurrence at all.

(v) PW.4 was treated hostile and though he has categorically deposed that PW.1 and PW.2 came to the spot after a long time, PW.4 was 90 years old and he had defective vision and therefore, he could not have seen any one or anything, which would go to show that PW.1 and PW.2 could not have seen the occurrence at all.

(vi) It is pertinent to point out that PW.1 and PW.2 have categorically deposed that they informed to the police about the death of the deceased, which is actually 20 kms away from the place of occurrence.

(vii) Added further the learned Counsel that on 3.6.2005, the occurrence was taken place but the accused/appellant was arrested on 5.6.2005 and material objects were recovered pursuant to the alleged confession given by him.

(viii) The ocular evidence adduced by PW.1 and PW.2 did not corroborate with the medical evidence. Thus, the prosecution has miserably failed to prove its case.

In the second line of argument, the learned Counsel for the appellant would argue that there was a wordy altercation between the deceased and the accused/appellant and even as per the prosecution case, no premeditation was found from the accused/appellant to commit any crime against the deceased. The act of the accused was neither intentional nor premeditated when the accused/appellant had grudge against one Veerapandi and even as per the evidence of the prosecution witnesses it is against Veerapandi but not against the deceased. When it was true and when he was to attack Veerapandi, the deceased had asked him not to do so. On being provoked by the words of the deceased, the accused/appellant had attacked the deceased. Thus, the act of the accused was due to sudden provocation and this aspect has got to be considered by the Court.

The court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and also scrutinised the materials available.

It is not in controversy that one Palani @ Palaniyandi, the husband of PW.1 was done to death in the incident that took place at about 3.45 p.m., on 3.6.2005; following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by Doctor PW.7 who has given her opinion that the deceased died out of shock and haemorrhage. The fact of the death as put- forth by the prosecution was never disputed before the trial Court and hence, the trial Judge was correct in recording so.

In order to substantiate that it was the accused who attacked the deceased at the time of occurrence, the prosecution examined four witnesses viz., PWs. 1 to 4. However, PW.3 and PW.4 have turned hostile but the prosecution to its advantage has the evidence of PW.1 and PW.2. It is true PW.1 is the wife and PW.2 is the brother of the deceased. Even after applying the test of careful scrutiny, the evidence of the witnesses inspired the confidence of the Court. The learned Counsel for the appellant brought some discrepancies in the evidence but they are minor particulars and hence much weight cannot be added to those discrepancies. The ocular testimony projected by the prosecution through PWs.1 and 2 had fully corroborated with the medical evidence projected by the prosecution. It is true PW.3 and PW.4 have turned hostile and their evidence was not useful for the prosecution.

The contention put-forth by the learned Counsel for the appellant that PW.1 and PW.2 could Not have seen the occurrence, cannot be accepted. According to the prosecution, when PW.1 and PW.2 were sitting along with the deceased outside the house and chatting, the accused came over there with the aruval MO.1 and asked them whether Veerpandi came over there and when he received a negative reply, he was about to move from the place and at that time, the deceased took a two wheeler and was about to start and at that time, there was a wordy altercation and in that process, the accused/appellant caused instantaneous death. It would be quite clear that the occurrence took place very near to the house of the deceased. Thus, PW.1 and PW.2 had got the full opportunity of witnessing the occurrence. Merely certain particulars were not noted by the investigator in the sketch prepared by him, it will not affect the case of the prosecution. This can be an irregularity committed by him but it would in no way take away the truth of the evidence put-forth by the prosecution through PW.1 and P.2 which inspired the confidence of the trial Judge and of the Court.

However, this Court can see force in the contention put-forth by the learned Counsel for the appellant in respect of the alleged arrest, confession and recovery. The investigator would claim that the accused was arrested on 5.6.2005 when came forward to give a confessional statement and following the same, he produced Material Object MO.1 used in the commission of crime. Contrarily, PW.1 has categorically stated hat the accused was brought to the Police station the very next morning after the occurrence. Hence, that part of evidence of the prosecution in respect of arrest and recovery cannot be accepted.

Except this part of the evidence, the prosecution had sufficient evidence to prove that it was the accused/appellant who attacked the deceased at the time and place of the occurrence and under the circumstances, the prosecution has brought home the guilt of the accused in that regard and the arguments put-forth by the learned Counsel for the appellant did not carry merit and they are liable to be rejected and accordingly, rejected.

Insofar as the second line of argument is concerned, the Court is able to see force in the contention put-forth by the learned Counsel for the appellant. In the instant case, admittedly, the accused/appellant, had grudge against Veerapandi only and not against the deceased. On the day when he came to the house of the deceased with the Aruval MO.1, he asked PW.1, PW.2 and the deceased whether Veerapandi came over there, when the reply came in negative, he was above to move, at that time, the accused also about to move in a TVS 50 and there were exchange of words between the accused/appellant and also the deceased. It was the deceased who asked the appellant not to do any such act. Though the accused/appellant who actually had grudge against Veerapandi since he misbehaved with his wife, on being suddenly provoked by the words of the deceased, he acted so. The act of the accused/appellant was neither intentional nor premeditated but due to sudden provocation by the words of the deceased, not to do so.

Under the circumstances, the Court is of the considered opinion that the act of the accused would not attract the penal provision of murder but would attract the penal provision of Section 304 Part I, and awarding seven years rigorous imprisonment would meet the ends of justice.

Accordingly, the conviction and sentence imposed on the accused/appellant for the offence u/s 302 of the IPC by the Trial Court are set aside and instead, the accused/appellant is convicted u/s 304 Part I, of the IPC and sentenced to undergo seven years rigorous imprisonment. The fine amount imposed by the trial Court is ordered to be treated as one imposed u/s 304 Part I, of the IPC. The conviction and sentence imposed by the trial Court u/s 341 of the IPC stands confirmed. The sentences are directed to be run concurrently. The period of sentence already undergone by the accused/appellant is directed to be given set off.

With the above modification in conviction and sentence, the Criminal Appeal is partly allowed.