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2006 DIGILAW 458 (MAD)

Sathyamurthy v. State by Inspector of Police

2006-02-22

A.R.RAMALINGAM, M.KARPAGAVINAYAGAM

body2006
Judgment :- (Criminal Appeal against the Judgment and conviction dated 1.11.2001 made in S.C.No.173 of 2001 on the file of the Additional District and Sessions Judge, Nagapattinam.) AR. Ramalingam, J. Convicted accused viz., Sathyamurthy for life imprisonment under section 302 IPC by the Additional Sessions Judge, Nagapattinam is the appellant. Challenging the said life sentence, he has preferred this appeal. The case of prosecution, in brief, can be stated as follows:- The deceased is one Kannan, husband of PW1 Valarmathi as well as brother of the accused Sathyamurthy. The said Valarmathy and the deceased Kannan were living in a portion of the house and the parents of the deceased viz., Samy Ayya and his wife were living in another portion of the same house. The accused Sathyamurthy and his wife Geetha were living on the backside in a separate house. There was some quarrel between the wife of the accused and the wife of the deceased on account of the conduct of the said Geetha in speaking unwanted things in a way offending the feelings of PW1 Valarmathy. 2. Whileso, on 11.7.2000 at about 5.45 pm, PW1, her husband Kannan the deceased and their child were returning to their house after worshipping Muni Ayya temple. The wife of the accused viz. Geetha was abusing PW1 and it was informed to the deceased Kannan by PW1. The deceased, in turn, informed the conduct of Geetha to the accused Sathyamurthy. Thereafter, at 8.00 pm, the accused Sathyamurthy was beating his wife Geetha in front of his house and immediately, the deceased Kannan went and questioned the accused as to why he is beating his wife Geetha. Consequently, the accused got irritated and with remarks "cd; gpur;ridia cd; tPl;oy; itj;Jf;bfhs;/ cd;dhy;jhd; gpur;rid tUfpwJ/" brought a stick marked as M.O.1 and attacked upon the head of the deceased Kannan and on sustaining injury, the deceased Kannan fell down and thereafter, he died on the spot and the accused ran away from the occurrence place. Thereupon, PW1 Valarmathy proceeded to Kudavasal Police Station and gave statement of complaint marked as Ex.P1 to PW16 Inspector of Police viz., Santhanam. Thereupon, PW1 Valarmathy proceeded to Kudavasal Police Station and gave statement of complaint marked as Ex.P1 to PW16 Inspector of Police viz., Santhanam. He registered FIR marked as Ex.P2 and took up investigation and proceeded to the occurrence place and prepared observation mahazar and rough sketch in the presence of PW6 and then conducted inquest upon the dead body of Kannan and prepared inquest report marked as Ex.P18 and made arrangements for sending the body for post mortem and examined witnesses and recovered blood stained clothes from the body and sent them under Form 95 to the Magistrate. In the meanwhile, PW12 Uthirapathy, Head Constable handed over the original FIR to the Judicial Magistrate and PW13 Vedhaian Grade I Constable entrusted the dead body of Kannan to PW10 Doctor Bala Kumaravelu for post mortem and the said doctor conducted post mortem and furnished post mortem report marked as Ex.P9 with his opinion that death was due to injuries sustained upon the head and corresponding internal injuries and shock and haemorrhage and the injuries found as 1 and 2 are capable of causing death. At that stage, the succeeding Inspector of Police viz., PW17 Jayaraman continued the investigation and arrested the accused on 23.7.2000 and recorded his confessional statement and recovered M.O.1 and remanded the accused and also sent M.O.1 to court and examined the witnesses for mahazar for M.O.1 viz., PW7 and another and gave requisition to the Magistrate for sending the M.Os recovered in this case for chemical analysis. Thereafter, PW14 Prabavathi, Head Clerk of the Magistrate Court sent the M.Os for chemical analysis in response to the requisition. The Magistrate also received the chemical analysis report marked as Ex.P13 and serologist report marked as Ex.P14. Thereafter, PW18 Krishnamurthy, another succeeding Inspector of Police continued the investigation and examined some witnesses and completed investigation and filed charge sheet. 3. The Trial Court examined totally 18 witnesses besides marking of 19 Exhibits and 8 M.Os. On questioning the accused under section 313 Cr.P.C., the appellant/accused has totally denied his complicity in the offence. 4. Thereafter, PW18 Krishnamurthy, another succeeding Inspector of Police continued the investigation and examined some witnesses and completed investigation and filed charge sheet. 3. The Trial Court examined totally 18 witnesses besides marking of 19 Exhibits and 8 M.Os. On questioning the accused under section 313 Cr.P.C., the appellant/accused has totally denied his complicity in the offence. 4. Learned counsel appearing for the appellant/accused, after taking us through the entire evidence and materials available, would contend that the sole eyewitness viz., the evidence of PW1 Valarmathi cannot be safely relied on and the alleged eyewitnesses viz., P.Ws.2 to 5 and 11 have not supported the prosecution and they have been treated as hostile and if for any reason the evidence of sole eyewitness viz., Valarmathy were to be believed, even then, offence under section 302 IPC cannot be made out and instead, offence under section 304 Part II only is made out and some lesser sentence may be awarded. On these aspects, we have heard the Additional Public Prosecutor. 5. On going through the evidence of PW1 Valarmathy carefully and deeply, we are able to see that the accused and deceased are brothers and the proximate cause for the occurrence appears to be the conduct of the wife of the accused in uttering words in a way offending the feelings of PW1 as well as the conduct of PW1 in bringing such conduct of the wife of the accused to the knowledge of her husband the deceased in a way to instigate him to make protest. In other words, the proximate cause for the occurrence appears to be very trivial and domestic among the women folk. Unfortunately, both deceased Kannan and the accused Sathyamurthy appear to have given weight to the words of the women folk and have been carried away to make protest upon the conduct of each other suddenly at the time of occurrence. Such wordy protest and quarrel has invited the occurrence and consequent death of Kannan at the hands of his own brother Sathyamurthy due to his attack with M.O.1 stick. 6. Such wordy protest and quarrel has invited the occurrence and consequent death of Kannan at the hands of his own brother Sathyamurthy due to his attack with M.O.1 stick. 6. It is significant to note that while the accused was beating his wife Geetha against whom the deceased made remarks to the accused earlier, the deceased Kannan himself has chosen to advise his brother Sathyamurthy as not to beat his wife Geetha and only upon such advise, the accused appears to have been irritated and suddenly attacked the deceased Kannan with M.O.1 stick. Unfortunately, Kannan sustained injuries upon his head and due to the said injury, he died on the spot. Therefore, if the situation is visualised in the practical approach, we are of the view that there is no pre-determination or intention on the part of the accused to murder his own brother Kannan and instead it could be only due to sudden fight in the heat of passion upon a sudden quarrel. That is why the weapon of offence happens to be M.O.1 stick instead of any other kind of deadly weapon like knife or another sharp edged weapon like aruval and thereby if at all it can be construed that the accused could have attacked the deceased with the knowledge that such injury is likely to cause death, but, without intention to murder. Therefore, we are convinced that the appellant/accused has not committed murder within the strict meaning of section 302 IPC and he has committed offence under section 304 Part II only. 7. Accordingly, the conviction of the accused under section 302 IPC is set aside and instead, the appellant/accused is convicted under section 304 Part II IPC and sentenced to undergo rigorous imprisonment for five years. The appeal is partly allowed to the extent indicated above. The Trial Court is directed to secure the custody of the accused to enable him to undergo the remaining period of sentence.