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2009 DIGILAW 1309 (MAD)

Narayanasamy v. State by the Inspector of Police

2009-04-21

R.BANUMATHI, RAJA ELANGO

body2009
Judgment Raja Elango, J. 1. This appeal arises out of the judgment made in S.C.No.532 of 2005 by the Additional District & Sessions Judge, Fast Track Court No-V, Chennai convicting the appellant/ accused for an offence under Section 302 IPC., and sentencing him to undergo life imprisonment and also to pay a fine of Rs.2,000/-, and convicting the appellant/ accused for an offence under Section 341 IPC., and sentencing him to undergo one month simple imprisonment and also convicting the appellant/accused for an offence under Section 324 IPC., and sentencing him to undergo one year simple imprisonment and also to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for one month. The sentences imposed for the above said charges shall run concurrently. 2. Brief facts of the prosecution case are as follows: (i) The deceased Rajendran was residing with his wife along with her sisters son Rajesh Kumar and Tilak Kumar at Water Tank Colony, Kotturpuram, Chennai and on the same colony in H Block No.39/17, the accused was residing along with his wife Chitra. The deceased Rajendran had some illegal relationship with the accused wife Chitra for the past some period. Knowing about this, the accused wanted to murder the Rajendran(since deceased) and in continuation of the same transaction on 14.08.2005 at about 11.30 P.M., when the deceased was walking in front of the Door No.2, 5th Block, 3rd Main Road, the accused with an intention to murder him, waylaid him and by saying stabbed him with knife (hidden inside the umbrella) on the left chest, left side rib and also on the right abdomen. The said Rajendran died due to the injuries sustained him in left chest and also due to heavy bleeding and shock. In continuation of the same transaction, when the witness Rajesh Kumar tried to intervene with this accused while assaulting his uncle. The accused also assaulted the said witness with the same knife on the left side ear and left fore head, due to which the witness sustained simple injuries. 3. To substantiate charges against the accused, in the trial Court, the prosecution examined P.Ws.1 to 12, Exs.P.1 to P.14 and M.Os.1 to 4 were marked and on the side of the accused one R. Gavaskar was examined as D.W.1. 4. 3. To substantiate charges against the accused, in the trial Court, the prosecution examined P.Ws.1 to 12, Exs.P.1 to P.14 and M.Os.1 to 4 were marked and on the side of the accused one R. Gavaskar was examined as D.W.1. 4. When the accused was questioned under Section 313 Cr.P.C., in respect of the incriminating materials appearing against him, he denied the same as false and pleaded not guilty. The learned Sessions Judge after hearing the arguments of both sides and relying on the evidences of P.W.1, 2 and 7 and eye witnesses of the occurrence, they deposed before the Court regarding the presence of the accused at the time of occurrence, the manner of attack and lodging of complaint and other facts and circumstances of the case and relying on the complaint Ex.P.1 and the post mortem certificate Ex.P8, convicted the accused for the offence under Section 302, 324 and 341 I.P.C. 5. Evidence of PWs.1, 2 and 7 as to the occurrence that accused inflicted stab injuries on the chest and abdomen is cogent and consistent. Finding of the learned Sessions Judge that impelled by motive the appellant only caused death of the deceased at the time of occurrence is unsustainable and as such we are not interfering with the conclusion arrived at by the learned Sessions Judge. 6. The learned counsel appearing for the appellant confined his argument only in regard to the fact whether the facts and circumstance alleged by the prosecution and the evidence adduced by the prosecution would attract the ingredients under Section 300 I.P.C. or it would attract Exception (I) of Section 300 I.P.C. 7. To substantiate the same, the learned counsel appearing for the appellant mainly relied on the circumstances viz., the place of occurrence. After hearing the arguments of the learned counsel appearing for the appellant, we have also perused the evidence on record, which clearly shows that the place of occurrence is near the accused house and the deceased is not living in that area. When the accused saw the deceased near his house, accused immediately angered and taken knife and inflicted the stab injuries. When the accused saw the deceased near his house, accused immediately angered and taken knife and inflicted the stab injuries. (ii) According to the learned counsel appearing for the appellant/accused that even after repeated warning and after the panchayat held by the elders, the deceased continued illicit intimacy with the accused wife, The perusal of the records and evidence also shows that the deceased arranged for a separate establishment for the accused wife at Perungudi and the accused after persuasion brought her back to Kotturpuram to his residence. Even thereafter the deceased continued illicit intimacy with the wife of the accused. (iii) The manner in which the occurrence took place would clearly suggest that the accused has not foreseen the presence of the deceased at the place where the occurrence took place. The weapon used by the deceased also a small knife at the length of 22 c.m., excluding the plastic handle, the length of the knife blade is only 12 c.m., and the accused caused a single injury which is a fatal one and caused death. The other injuries are abrasions and simple in nature. Further, the learned counsel appearing for the appellant argued that the accused is being a cook, by his profession, he has been in possession of the knife. Hence, the possession of knife was neither conscious nor with intention to cause injury to the deceased. 8. The case of the prosecution is that the accused concealed the knife on that day and use the same after taking from the umbrella. Where as the learned counsel brought to our attention that the evidence of witnesses clearly shows that the fateful day was a rainy day and there was drizzling. According to the learned counsel appearing for the appellant that since because of the sustained provocation, the deceased who has continued his illicit intimacy with accused wife, the accused lost his balance and in spur of the moment caused injuries to the deceased. 9. In support of his contention, the learned counsel appearing for the appellant placed reliance upon (2004) M.L.J. (Crl.) 1101 (Shanmugam vs. State represented by Inspector of Police, Sembanarkoil Police Station) and 1993 MLJ (Crl.) 53 (Lakshmi Vs. The State by Inspector of Police, Palani Town). 10. 9. In support of his contention, the learned counsel appearing for the appellant placed reliance upon (2004) M.L.J. (Crl.) 1101 (Shanmugam vs. State represented by Inspector of Police, Sembanarkoil Police Station) and 1993 MLJ (Crl.) 53 (Lakshmi Vs. The State by Inspector of Police, Palani Town). 10. In Lakshmis case (1993 MLJ (Crl.) 53) referring to K.M. Nanavathys case ( AIR 1962 S.C. 605 ), the deceased harassed his wife suspecting chastity of his wife, and on the date of occurrence due to the harassment and sustained provocation, the appellant thought that she could no longer endure his torture and harassment, she took an aruval nearby and cut her husband. Referring to various judgments of Apex Court, Division Bench modifying the conviction from Section 302 IPC to Section 304(I) I.P.C, the Division Bench held as under:- “The evidence available in this case clearly shows that there has been sustained provocation for the appellant for a considerable period of time. Exception I under Section 300, I.P.C. states that culpable homicide is not murder if the offender whilst deprived of the power of self control by grave and sudden provocation caused the death of the person who gave the provocation or causes the death of any other person by mistake or accident. It is common knowledge that the term self control in is a subjective phenomenon and it can be inferred from the surrounding circumstance of a given case. In order to find out whether the last act of provocation on which the offender caused the death was sufficiently grave to deprive him of the power of self control, we can always take in to consideration previous acts of provocation caused by the deceased person. As it has been pointed out by the Supreme Court in K.M. Nanavathy .vs. State of Maharashtra, A.I.R. 1962, S.C. 605, the mental background created by the previous act of the victim is a fact that has to be taken in to consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.” 11. To the same effect is the decision in (2004) M.L.J. (Crl.) 1101 where in the Division Bench has observed as follows:- “No doubt that the offence has been committed on the part of the appellant since he suspected illicit intimacy in between the deceased and his wife. To the same effect is the decision in (2004) M.L.J. (Crl.) 1101 where in the Division Bench has observed as follows:- “No doubt that the offence has been committed on the part of the appellant since he suspected illicit intimacy in between the deceased and his wife. Even though no strong materials are available to suggest that there had been any such illicit intimacy in between the two as it has been preying heavily in the mind of the appellant, some how or other since they both were living in the family under one and the same roof, the appellant had developed the mental inertia and without any valid reason to offer to entertain such suspicion in his mind the appellant had become somewhat a depressed man in suspecting the very fidelity of his own wife in relation to the deceased and in spite of many clarifications rendered on the part of the deceased also that there had been absolutely no reason for the appellant to think in that line, still, without being able to get over the thought that had entered into his mind, ultimately he had committed the offence by hitting the deceased with crowbar on the left temporal region of his head while he was sleeping and causing grievous injury, as a result of which the deceased with profuse bleeding died a little later. 12. The act of the deceased who arranged for a separate family to the accused wife, at Perungudi, and even after return of the wife to the accused at Kotturpuram, continued illicit intimacy of the deceased with accused wife caused ire and sustained provocation which caused sudden provocation to the accused. Based on facts and circumstances of the case in our view in the instant case, the theory of sustained provocation can be invoked. 13. So we are of the opinion that the conviction recorded by the learned trial judge under Section 302 I.P.C and the sentence to imprisonment for life cannot be sustained. And instead, the appellant has to be convicted only under Section 304(I) I.P.C. 14. In the result, this appeal is allowed in part. The appellant/accused is found guilty of the offence under Section 304(I) IPC, instead of Section 302 IPC. And instead, the appellant has to be convicted only under Section 304(I) I.P.C. 14. In the result, this appeal is allowed in part. The appellant/accused is found guilty of the offence under Section 304(I) IPC, instead of Section 302 IPC. Accordingly, the sentence of life imprisonment imposed under Section 302 IPC is modified and the appellant/accused is sentenced to undergo Rigorous Imprisonment for a period of seven years for the offence under Section 304(I) IPC. The fine amount of Rs.2,000/- imposed by the trial Court for the offence under Section 302 IPC, shall be treated as the fine imposed by this Court for the offence under Section 304(I) IPC. In respect of conviction of the appellant/accused for the offences under Section 324 and 341 I.P.C. shall hold good. It is further ordered that both the sentences shall run concurrently. The learned Sessions Judge is directed to take steps to secure the accused and commit him to the prison to undergo the remaining period of sentence. The bail bond executed by the appellant/accused shall stand cancelled.