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2008 DIGILAW 1067 (MAD)

Konusi Subramaniyam v. Inspector of Police

2008-03-26

P.D.DINAKARAN, R.REGUPATHI

body2008
Judgment :- R. Regupathi, J. The appellant, sole accused in the case was convicted for an offence punishable under Section 302 IPC and was sentenced to undergo imprisonment for life and a fine of Rs.2000/=, in default to undergo one year rigorous imprisonment. Aggrieved against the conviction and sentence, the present appeal. 2. As per the charge, it is the case of the prosecution that on 14. 2003 at 10.00 a.m., at Madhagadi Street, Pappakovil village, within the jurisdiction of the respondent police, the accused armed with Veecharuval with a premeditation to kill the deceased, caused injury on the neck and shoulder repeatedly and in the result, the deceased succumbed to those injuries, thereby the appellant is liable for conviction for offence punishable under Section 302 IPC. 3. Initially, when the accused was questioned, he pleaded not guilty and took up the trial. The prosecution, by way of substantiating its case examined P.Ws 1 to 18, marked Exs.P.1 to P.17 and produced M.Os 1 to 8. 4. P.W.1 is the brother of the deceased As per his evidence, the second wife of the deceased quarrelled with him and left him 4 to 5 years back and therefore the deceased was living alone. The accused is a neighbour. On the day previous to the date of occurrence, during night time, there was a quarrel between the accused and the deceased and it is P.W.1 who pacified them. Under such circumstances, on 14. 2003 at about 10.00 a.m., he was sitting in front of his residence and at that time, he heard the noise in the street and when he went there, saw the accused with Aruval causing injury on the neck, left hand, right shoulder and other places. P.Ws.3 and 4 and other witnesses have witnessed the occurrence. The deceased fell down with bleeding injuries and died. Thereafter, P.w.1 lodged the complaint Ex.P.1 to the police. He has identified M.O.1 Veecharuval. 5. P.W.14 is the Sub Inspector of Police, who on receipt of the complaint Ex.P.1, given by P.W.1 at 11.00 a.m., registered a case in Crime No:198 of 2003 for the offence punishable under Section 302 IPC. He despatched the Express copy of the FIR Ex.P.14 to the learned Judicial Magistrate and to higher police officials. P.W.15, Police Constable took the copy of the FIR and delivered the same to the learned Judicial Magistrate No.1, Myladuthurai at 9.45 p.m., 6. He despatched the Express copy of the FIR Ex.P.14 to the learned Judicial Magistrate and to higher police officials. P.W.15, Police Constable took the copy of the FIR and delivered the same to the learned Judicial Magistrate No.1, Myladuthurai at 9.45 p.m., 6. P.Ws 2 and 3 have been examined as eye witnesses to substantiate the motive part of the case of the prosecution. However, they did not support the case of the prosecution and they were treated as hostile witnesses. P.W.4 is a neighbour in the village who in his evidence stated that he has seen the accused coming out from the scene of occurrence with Aruval. P.Ws 7 to 10 who reside in the same village have been examined to substantiate the motive part of the case of the prosecution and since all these witnesses did not support the case of the prosecution, they have been treated as hostile. 7. P.W.17, Inspector of Police on receipt of the First Information Report on 14. 2003 at 11.45 a.m., reached the scene of occurrence and after seeing the scene of occurrence, prepared Observation Mahazar and Rough Sketch, Exs.P.2 and P.16 respectively. P.W.6, Village Assistant has attested the Observation Mahazar. He conducted inquest over the dead body of the deceased in the presence of the witnesses. Ex.P.17 is the Inquest Report. He recovered M.Os.2 and 3 being bloodstained earth and sample earth under cover of Mahazar Ex.P.3. He has examined P.Ws 1 to 10 and recorded their statements. He sent a requisition Ex.P.7 though P.W.16 to conduct postmortem over the dead body of the deceased and P.W.12 on 14. 2003 on receipt of such requisition conducted autopsy at 4.00 pm., and found the following external and internal injuries:- "1. Oblique cut injury extending from the centre of the back of neck ½ cm below the hairline extending obliquely anteriorly towards angle of Mandible measuring about 15 cm x 5 cm x 5 cm exposing the cut ends of body of mandible neck muscles sterno mastoid muscle occipital muscles exposing vertebra with varying depth and right side exploration of the same would reveals fracture of the body of III cervical vertebral transverse process and cut injury of the vertebra artery on the right side present. 2. 2. Cut injury right ear thro and thro extending in front of (N.C) extending 2 cm behind the ear exposing (N.C) 5 cm x 2 cm x (N.C). 3. Cut injury right shoulder 2 cm x ½ cm x (N.C). 4. Another cut injury over left phase lower part of neck (N.C) extending from left side sternomasited (N.C) extending back 7 cm x 3 cm x 5 cm depth with fracture of first rib exposing veitetrem (N.C) Blisters present over the body due exposing to sunlight. Thorax no fracture heart 300 gm chambers empty lungs right 400 gm left 350 gm pale C/s congested Hyoid intact stomach 500 ml of partial digested food particles. Food (N.C) Liver 1600 pale. Spleen 160 gm., Kidney 150 gm., pale. Brain 1350 gm., No fracture of longbones cranium". 8. The Doctor also gave the opinion that the deceased would appear to have died of multiple cut injuries on the neck and injury No.12 vertebra entry leading haemorrahage and shock probably 12-24 hours prior to postmortem. He has issued the postmortem certificate under Ex.P.8. 9. During the course of investigation, on 20.4.2003, at 10.00 a.m., the accused was produced by the Village Administrative Officer, P.W.11, along with the statement of the accused and weapon. The Investigating Officer recovered M.O.6, bloodstained shirt under Form 95 and despatched the report given by the VAO along with the statement of the accused with the other material objects to the court with a requisition, Ex.P.9, to the learned Judicial Magistrate to receive opinion from the chemical analyst. 10. In Ex.P.4 statement given to the Village Administrative Officer, the accused has stated that he was living in his village with his wife and 4 children and was eking out his livelihood by doing agricultural cooli work. Since there was no rain, his wife was attending the building construction work as an Assistant (Sithaal) at Nagapattinam. The house of the deceased situate opposite to his residence. The deceased alleged to have stated that the wife of the accused was not really going to attend the work as a Sithaal, but staying in the lodge at Velanganni and getting money by doing prostitution. On the previous day i.e., on 14. The house of the deceased situate opposite to his residence. The deceased alleged to have stated that the wife of the accused was not really going to attend the work as a Sithaal, but staying in the lodge at Velanganni and getting money by doing prostitution. On the previous day i.e., on 14. 2003 at about 9.00 pm., the deceased alleged to have stated in the village that the wife of the deceased was doing the job of a prostitution and her private parts must be severed, only then the others in the vilalge will get reformed. The villagers have pacified the deceased. After hearing of this, the wife of the accused told him and the accused wanted to question the deceased in this regard. Under such circumstances, on 14. 2003 at 10.00 a.m., the accused went to the residence of the deceased with Veecharuval, concealed on the back of his chest and found the deceased coming on the opposite side of the street and questioned about the allegations made against his wife, for which, the deceased replied, instead of questioning his wife, he has come and threatening him. Provoked by this, the accused took out the Veecharuval and delivered a cut saying that the deceased having sent his wife, he is passing aspersions and even his existence is shameful to other women in the village, saying so, he delivered cut on the neck of the accused repeatedly. Thereafter, the accused ran away from the scene of occurrence and on the next day since he wanted to surrender, appeared before the VAO and given the statement along with the weapon. 11. P.W.11, Village Administrative Officer in his evidence deposed that the accused surrendered on 24. 2003 at 9.30 a.m., when he was in his office. The accused has given a statement which was recorded by him under Ex.P.4. The accused also produced the weapon of offence. He has prepared a report about the same in Ex.P.5 and along with the documents and weapon, he produced the accused before the Police Station. 12. P.W.13 is the Court Clerk, who despatched the material objects and received the reports from the Chemical Analyst. Ex.P.12 is the Biological Report and P.13 is the Serological Report. 13. He has prepared a report about the same in Ex.P.5 and along with the documents and weapon, he produced the accused before the Police Station. 12. P.W.13 is the Court Clerk, who despatched the material objects and received the reports from the Chemical Analyst. Ex.P.12 is the Biological Report and P.13 is the Serological Report. 13. P.W.18, took up further investigation of the case from P.W.17, after verifying the investigation conducted by his predecessor, after examination of the witnesses, and after receipt of reports final report on 26. 2003 against the accused for an offence punishable under Section 341 and 302 IPC. 14. On conclusion of examination of the prosecution witnesses, the incriminating material evidence oral and documentary were put to the accused as contemplated under Section 313 Cr.P.C., for which, the accused denied his complicity of committing the offence. No witness was examined and no document was produced by the defence. The learned Sessions Judge, after hearing both the parties, hearing the oral submissions of both sides, convicted and sentenced the accused as mentioned above. Aggrieved of the same, the present appeal is preferred. 15. Learned counsel for the appellant submits that but for P.Ws 1 and 4, all the witnesses who have been examined as eye witnesses to substantiate the motive, have turned hostile. P.W.11 is the VAO, and the accused is alleged to have surrendered before him and has given an extra judicial confession and the same was reduced into writing. It is stated that the weapon of offence, namely Veecharuval was also produced to the VAO. P.W.1 is the brother of the deceased and hence he is an interested witness. P.W.4 is not an eye witness of the case and he did not see the assault of the deceased by the accused. It is submitted that there is every possibility of P.W.11, VAO, obliging the Investigating Officer. The prosecution case has not been substantiated beyond reasonable doubt against the accused and therefore submit that it is a fit case for acquittal. In the alternative, it is submitted that if the version of the prosecution witnesses and other materials are taken into account, the offence under Section 302 is not made out. 16. The prosecution case has not been substantiated beyond reasonable doubt against the accused and therefore submit that it is a fit case for acquittal. In the alternative, it is submitted that if the version of the prosecution witnesses and other materials are taken into account, the offence under Section 302 is not made out. 16. According to the learned counsel, in view of the provocative allegations made by the deceased against the wife of the accused, on the previous day, the accused deprived of his self control, has committed the offence and therefore, it must be presumed that the accused did not have any intention to kill the deceased and therefore, the offence under Section 302 is not made out. 17. Per contra, the learned Additional Public Prosecutor submits that P.W.1 though he is the brother of the deceased, is an eye witness and natural witness who was present at the time of occurrence. He has narrated the occurrence without any embellishment and under such circumstances, his evidence must be accepted, which is corroborated by the evidence of P.W.4 who is an independent witness, who do not have any axe to grind against the accused and as per his evidence, it is he who has seen the accused running away from the scene of occurrence with the Veecharuval after inflicting injuries on the deceased. According to the learned Additional Public Prosecutor, even though the other witnesses namely, P.Ws 2,3,5 and 7 to 10 did not support the case of the prosecution, with the available evidence of P.Ws 1,4 11 and other official witnesses, the case is substantiated. According to the Doctor who conducted the Postmortem, the death of the deceased must be due to homicidal violence and it could be caused with M.O.1 weapon. The complaint in the case on hand has been given by P.W.1. It could be also seen that without delay the complaint was registered by P.W.12 and the investigation of the case was also taken up immediately. There is no reason to disbelieve the evidence of P.W.11, VAO, before whom the accused surrendered and given a statement Ex.P.4 by producing the weapon of offence. 18. The learned Additional Public Prosecutor further contended that the motive put forward by the prosecution is also established through the extra judicial confession statement of the accused. There is no reason to disbelieve the evidence of P.W.11, VAO, before whom the accused surrendered and given a statement Ex.P.4 by producing the weapon of offence. 18. The learned Additional Public Prosecutor further contended that the motive put forward by the prosecution is also established through the extra judicial confession statement of the accused. The motive witnesses have also stated about the same, which was supported by the accused in his confession statement, Ex.P.4. However, none of those witnesses have supported the case of the prosecution and therefore, they were treated as hostile. In spite of that, since the occurrence was witnessed by two witnesses P.W.1 and the accused running out from the scene of occurrence has been seen by P.W.4, coupled with the material evidence available on record is sufficient to come to the conclusion that it is only the accused who committed the offence. Since the wife of the accused was abused in filthy language by the deceased, it is submitted that it is quite natural that the accused got provoked. In fact, there was an occurrence on the previous day wherein the deceased abused the wife of the accused in filthy words. On the next day, at the time of occurrence, there was a quarrel between the accused and the deceased on that account and only under such circumstances, the accused has caused injury and the same will constitute an offence punishable under Section 302 IPC. 19. We have perused the materials both oral and documentary available on record and heard the rival submissions of both parties. 20. The occurrence took place in the street, in front of the house of the accused and the deceased. The occurrence was witnessed by P.W.1, in which the accused armed with Aruval caused injury on the neck and shoulder of the deceased. After the occurrence, P.W.4 witnessed the accused coming out from the scene of occurrence. From these two witnesses, we could see that it is the accused who has committed the offence. The injuries sustained by the deceased could be seen on perusal of the evidence of P.w.12, Medical Officer and postmortem certificate issued thereof. After the occurrence, P.W.4 witnessed the accused coming out from the scene of occurrence. From these two witnesses, we could see that it is the accused who has committed the offence. The injuries sustained by the deceased could be seen on perusal of the evidence of P.w.12, Medical Officer and postmortem certificate issued thereof. Though the witnesses who speak about the motive part of the case of the prosecution have been treated as hostile witnesses, the occurrence as spoken to by P.W.1 and P.W.4 has been stands corroborated by the extra judicial confession given by the accused before the VAO, wherein he has stated that it was the deceased who abused his wife in filthy language as if she is doing prostitution. The allegation made against the wife is so grave and provocative. This was informed to the accused by his wife and there was a quarrel and the deceased has also further stated to the villagers that unless her private parts are cut, the other women in the village will not get reformed. Only under such surcharged atmosphere the accused got provoked and wanted to question about the abusive language used against his wife and only under such circumstances, the occurrence had taken place. Even at the time when the accused questioned, the deceased did not repent for his using the provocative abusive words, instead advised the accused to go back and restrain his wife. Only under such circumstances, we are of the considered opinion that the act committed by the accused will be culpable homicide not amounting to murder and an offence under Section 302 is not made out. However, in view of the weapon used and injuries sustained by the deceased, the intention to commit an offence is apparent and such offence will fall within the ambit of Section 304(1) IPC. 21. It appears that the accused was working as an agricultural cooli, father of four children and he was looking after the children with the help of his wife. Therefore, we are of the considered view that sentence of three years will be sufficient for the offence committed by the accused. Therefore, while setting aside the conviction and sentence imposed under Section 302 IPC, the offence is modified into one under Section 304(1) IPC and sentence of life imprisonment is modified into 3 years rigorous imprisonment. We are not interfering with the imposition of fine. Therefore, while setting aside the conviction and sentence imposed under Section 302 IPC, the offence is modified into one under Section 304(1) IPC and sentence of life imprisonment is modified into 3 years rigorous imprisonment. We are not interfering with the imposition of fine. With these modifications, this Criminal Appeal is allowed in part. The bail bond executed by the accused shall stand cancelled. The trial court shall take steps to secure the accused to commit him to prison to undergo the remaining period of sentence.