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2006 DIGILAW 12 (MAD)

Kumar v. State, by Inspector of Police

2006-01-04

K.N.BASHA, M.KARPAGAVINAYAGAM

body2006
Judgment :- (Appeal against the judgment dated 21.01.2002 made in S.C.No.217 of 1999 on the file of Additional Sessions Judge-cum-Fast Track Court No.1, Chengalpattu.) M. Karpagavinayagam, J. Kumar, appellant herein, was convicted for the offence under Section 302 IPC, for having caused the death of one Ashok Kumar. Challenging the same, this appeal has been filed. 2. The factual details, leading to the conviction, are as follows: "(a) The deceased Ashok Kumar and the accused/appellant Kumar were residing in the same village by name Vaaranavasi. The deceased developed illicit intimacy with one Rama, wife of the accused. Aggrieved over this, the accused reported the matter to the Panchayatdars. A panchayat was convened and, after panchayat, the accused and his wife decided not to stay any more in the village. Accordingly, they left the village, came and stayed in Saidapet, Chennai. (b) Both the accused and his wife were working in MEPZ Complex. Wife was working in a shoe company and husband was working with a different concern. (c) The fateful occurrence had taken place on 24.03.1998. The accused came to the shop situated in MEPZ Complex on a cycle along with his wife. After leaving the wife in her shop, the accused was about to go to his shop. At that time, he happened to see the deceased Ashok Kumar sitting on a cement slab, situated just opposite to the shop in which Rama, wife of the accused, was working, He also noticed that deceased went and talked to the wife of the accused. Therefore, the accused took a weapon M.O.1, 'L' shaped angle rod, and attacked the deceased on head and face. (d) P.W.1, driver, immediately went to the Police Station for giving a complaint. (e) P.Ws.2 and 3, who happened to be the Security Officers working in the same complex, took the victim with bleeding injuries to Government Hospital at Chromepet. (f) P.W.9, doctor, after giving treatment, issued wound certificate Ex.P-4 and referred the victim to General Hospital, Chennai. (g) In the meantime, P.W.12, Sub-Inspector of Police, received a complaint from P.W.1 and registered a case against the accused for the offence under Sections 307 and 506 (II) IPC. (h) P.W.13, Inspector of Police, after receipt of the report, which has been registered for the offence under Section 307 IPC, came to the scene, observed all the formalities and prepared observation mahazar and rough sketch. (h) P.W.13, Inspector of Police, after receipt of the report, which has been registered for the offence under Section 307 IPC, came to the scene, observed all the formalities and prepared observation mahazar and rough sketch. Thereafter, the deceased, who was taken to General Hospital, Chennai, died at about 12.12 hours on 24/25.03.1998. Therefore, he sent an alteration report, converting the offence into 302 IPC. On 25.03.1998 at about 01.00 a.m., he arrested the accused and, in pursuance of the confession made by the accused, he recovered M.O.1, 'L' shaped angle rod. Thereafter, he conducted inquest between 08.30 a.m. and 10.30 a.m. and sent the dead body for post-mortem. (i) P.W.10, doctor, who conducted post-mortem, found 11 injuries on the dead body and issued post-mortem certificate, Ex.P-7. He gave an opinion that the deceased died of shock and haemorrhage, due to head injuries. (j) The material objects were sent for chemical examination. (k) After completion of the investigation, P.W.13 filed charge sheet against the accused for the offence under Section 302 IPC." 3. During the course of trial, P.Ws.1 to 13 were examined; Exs.P-1 to P-19 were filed and M.Os.1 to 8 were marked. 4. The plea of the accused, while he was questioned under Section 313 Cr.P.C., was one of total denial. 5. The trial court, having analysed the material available on record, concluded that the case of the prosecution has been proved beyond all reasonable doubt and, accordingly, convicted the accused. This is the subject matter of challenge before this Court, in the appeal filed by the accused. 6. Mr. S. Swamidoss Manokaran, learned counsel for the appellant, would take us through the entire evidence and contend, that out of three eye-witnesses, one eye-witness turned hostile and other two eye-witnesses have given the details about the occurrence, which are not in consonance with the case of the prosecution, and, as such, the accused is liable to be acquitted. At the end, he would confine himself to the nature of the offence. At the end, he would confine himself to the nature of the offence. According to him, the accused got provoked at the sight of the deceased, who was present at the shop of the wife of the accused and who had earlier affairs with his wife, and, on a sudden and grave provocation, he removed the 'L' shaped angle rod and inflicted injuries on the deceased and, as such, he could be liable to be convicted for the offence under Section 304 (I) IPC and not 302 IPC. 7. On these aspects, we have heard the learned Additional Public Prosecutor. 8. On a perusal of the entire records, it is clear that the occurrence had taken place in the manner alleged by the prosecution, because, in our view, the testimony tendered by P.Ws.2 and 3 is quite natural, as they are truthful witnesses. 9. There is no dispute in the fact that both P.Ws.2 and 3 were working as Security Officers in the said complex and P.W.2 is the person, who took the victim to Chromepet Hospital, immediately after the occurrence, and got the victim admitted. The evidence of P.W.9, doctor, Chromepet Hospital, and also the wound certificate Ex.P-4 would indicate that the victim/deceased was brought by P.W.2 and treatment was given to him. The evidence of P.W.2 has been sufficiently corroborated by P.W.3 also, who is another Security Officer, and their ocular testimony has been clearly corroborated by the medical evidence through P.Ws.9 and 10, doctors. Therefore, there is no difficulty in holding that the prosecution case has been proved beyond reasonable doubt. 10. As regards the nature of offence, it has been contended by the learned counsel for the appellant that the accused is entitled to invoke Exception (1) of Section 300 IPC and, consequently, he is liable to be convicted only for the offence under Section 304 (I) IPC. 11. From the evidence of P.W.4, wife of the deceased, it is clear that both the deceased Ashok Kumar and the accused were residing in the same village and the deceased developed illicit intimacy with Rama, wife of the accused, and, with reference to that, matter was reported to the Panchayatdars and a panchayat was also convened. It is also admitted by P.W.4 that after panchayat was over, the accused and his wife left the village once for all and came and settled in Saidapet. 12. It is also admitted by P.W.4 that after panchayat was over, the accused and his wife left the village once for all and came and settled in Saidapet. 12. Thus, it is clear that the accused got aggrieved over the conduct of the deceased, who had illicit affair with the wife of the accused, and, in order to avoid the said controversy, they came and settled at Saidapet, Chennai. 13. It is also an admitted fact that both the accused and his wife were working in the same complex. On the date of occurrence, i.e., on 24.03.1998, the accused brought his wife in a cycle and left her in her shop, where she was working. At that time, the deceased was sitting on a cement slab, situated just opposite to the shop of the wife of the accused. Admittedly, the accused was not working in the same shop, but, he was working as a carpenter somewhere else. The very sight of the deceased by the accused in a sitting posture near the shop, in which the wife of the accused was working, provoked the accused and, at that time, the deceased also went to the wife of the accused and talked to her. This has been spoken to by P.W.2. It is also admitted by P.W.2 that the weapon used by the accused was found available nearby. So, on getting provoked by the sight of the deceased and further getting provoked by noticing that the deceased went and talked to his wife, the accused took M.O.1, 'L' shaped angle rod, which was found available nearby, and inflicted injuries on the head of the deceased and the deceased died in the hospital. 14. Therefore, it can be safely held that the act committed by the accused was under a sudden and grave provocation, while losing his control, and, as such, he is entitled to invoke Exception (1) to Section 300 IPC and, consequently, he is liable to be convicted only for the offence under Section 304 (I) IPC and not under Section 302 IPC. 15. In view of the discussion made above, the conviction imposed on the appellant under Section 302 IPC is set aside and, instead, he is convicted for the offence under Section 304 (I) IPC and sentenced to undergo rigorous imprisonment for a period of seven years. 16. Appeal is allowed in part. 15. In view of the discussion made above, the conviction imposed on the appellant under Section 302 IPC is set aside and, instead, he is convicted for the offence under Section 304 (I) IPC and sentenced to undergo rigorous imprisonment for a period of seven years. 16. Appeal is allowed in part. The trial Court is directed to secure custody of the appellant forthwith to undergo the remaining period of sentence.