(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Principal Sessions Division, Erode, made in S.C.No.180 of 2005 whereby the appellant/sole accused stood charged under Sec.302 of IPC, tried, found guilty of murder and awarded life imprisonment with a fine of Rs.10000/- and default sentence.
2.The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the son of the deceased Vandikkarar @ Periyasamy. The deceased was doing jaggery business at Ganesapuram. The accused, a resident of the same place, was also carrying on the same business. P.W.5 Sigamani was also doing the same business. Originally, the accused was doing profitable business. Thereafter he sustained a loss. He was under the impression that the deceased was responsible for the same since he directed all the customers to go to the shop of Sigamani, P.W.5, and thus, the accused developed enmity towards the deceased.
(b) On 26.6.2005, as usual the deceased after having the dinner, was proceeding to his shop at about 8.45 P.M. Since he forgot to take the outer key of the shop, P.W.1 took the same and followed his father. When the deceased was just crossing the house of the accused situated on the way, the accused came out and was questioning whether he directed the customers to go to the shop of Sigamani. It was replied by him not so. Immediately, the accused got inside the house, brought M.O.1, sickle, and attacked him twice. This was witnessed by P.W.2 and one Velliangiri, not examined.
(c) P.W.1 immediately informed to the villagers. All gathered there. Then he proceeded to the respondent police station at about 4.30 A.M. At that time, P.W.11, the Sub Inspector of Police was on duty. P.W.1 gave Ex.P1 report to him, on the strength of which a case came to be registered in Crime No.158 of 2005 under Sec.302 IPC. The printed FIR Ex.P16, was despatched to the Court.
(d) P.W.12, the Inspector of Police of that circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2 and a rough sketch, Ex.P17. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P18, the inquest report. He recovered bloodstained earth and sample earth from the place of occurrence under a cover of mahazar. The dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy.
(e) P.W.6, the Assistant Medical Officer, attached to the Government Hospital, Gobichettipalayam, on receipt of the said requisition, conducted autopsy on the dead body of Vandikarar @ Periyasamy and gave his opinion that the deceased would appear to have died of shock and haemorrhage due to injury at neck and upper back. He gave a postmortem certificate, Ex.P9.
(f) Pending investigation, the accused was arrested on 27.6.2005 at 2130 hours. He gave a confessional statement. The admissible part is marked as Ex.P4, pursuant to which he produced M.O.1, sickle, M.O.4, shirt, and M.O.5, lungi, all bloodstained. They were all recovered under a cover of mahazar. He was sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body and also the material objects recovered from the accused on production, were subjected to chemical analysis by the Forensic Sciences Department on a requisition given by the Investigating Officer through the concerned Judicial Magistrate's Court, which brought forth Ex.P12, the chemical analyst's report, and Exs.P13 an P14 the serologist's report. On completion of the investigation, the Investigator filed the final report.
3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 12 witnesses and relied on 18 exhibits and 11 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence entered a judgment of conviction and sentence which is the subject matter of challenge before this Court.
4.Advancing arguments on behalf of the appellant, the learned Counsel made the following submissions:
(a) According to the prosecution, the occurrence has taken place on 26.6.2005 at about 9.00 P.M. The prosecution marched P.Ws.1 and 2 as eyewitnesses. Apart from them, one Velliangiri, according to the Investigator, has also witnessed the occurrence. But, he was not examined for the reasons known to the prosecution.
(b) As far as P.W.1 was concerned, he is the son of the deceased. P.W.2 is the brother-in-law of P.W.1. Thus they are all not only close relatives, but also interested. In such circumstances, their evidence if scrutinised carefully, it does not stand the test, and hence their evidence should have been rejected.
(c) It is doubtful whether Ex.P1 could have come into existence as put forth by the prosecution. According to P.W.11, the Sub Inspector of Police, P.W.1 came to the police station and gave Ex.P1, written report, on the strength of which a case came to be registered. But, the xerox copy of Ex.P1 report, was found in the case bundle. When it was enquired, the Sub Inspector had no explanation to offer. It would be quite clear that Ex.P1 report could have been prepared at the police station itself and that too through a constable. If to be so, the evidence of P.W.11 that P.W.1 gave a written report would go to show that Ex.P1 could not have come into existence as put forth by the prosecution.
(d) There are lot of discrepancies which are major in nature, between the evidence of P.W.1 and P.W.2. Further these discrepancies would clearly indicate that both the witnesses could not have seen the occurrence at all.
(e) The medical evidence did not support the case of the prosecution.
(f) The alleged arrest, confession and recovery are nothing but subsequent development in order to strengthen the prosecution case.
(g) Even the scientific evidence produced through the chemical analyst's report and serologist's reports did not support the case of the prosecution. According to the Investigator, M.O.1, sickle, was recovered from the accused. But, the blood group did not tally as per the report along with the other material objects.
(h) All the above would go to show that the prosecution has not proved the case beyond reasonable doubt.
5.The learned Counsel in the second line of argument would advance that as per the evidence of P.Ws.1 and 2, both the accused and the deceased were doing jaggery business, and the accused was facing loss in his business, and he was under the impression whether right or wrong it was due to the direction given by the deceased to the customers to go to the shop of P.W.5; that the evidence would go to show that on the date of occurrence, when the accused was standing in front of his house, the deceased was just proceeding, and there was a wordy altercation, and immediately, he went inside the house, took a sickle and then attacked him; that it would indicate that at the time of the occurrence the accused was not armed with any weapon; but only after the wordy quarrel, he got inside and took sickle out; that under the circumstances, there was a sudden quarrel preceding the occurrence; that there was no premeditation or intention for the accused to act so, and under the circumstances, it has got to be considered by this Court.
6.The Court heard the learned Government Advocate (Criminal Side) on the above contentions and paid its anxious consideration on the submissions made.
7.It is not in controversy that one Vandikkarar @ Periyasamy, the father of P.W.1, was done to death in an incident that had taken place at about 9.00 P.M. on 26.6.2005. After the registration of the case by P.W.11, the Sub Inspector of Police, the copy of the FIR was received by P.W.12, the Inspector of Police, and at the scene of occurrence, he conducted inquest and prepared the inquest report, Ex.P18. Following the same, the dead body was subjected to postmortem by P.W.6, the Doctor, on a requisition made by the Investigator. He gave his categorical opinion as a witness before the Court and through his postmortem certificate, Ex.P9, that the deceased died of shock and haemorrhage due to injury at neck and upper back. This fact that Vandikkarar @ Periyasamy died out of homicidal violence was never disputed by the appellant before the trial Court, and hence without any impediment it could be recorded so.
8.In order to substantiate that it was the accused who stabbed the deceased to death, the prosecution marched two witnesses. It is true that P.W.1 is the son of the deceased and P.W.2 is the brother-in-law of P.W.1. This Court is also mindful of the caution made by the settled principles of law and also by the Supreme Court that in a given case where the relations happened to be the eyewitnesses, the Court before accepting their evidence, must exercise the test of careful scrutiny. Even after this test is applied, this Court is thoroughly satisfied that the evidence of P.Ws.1 and 2 has got to be accepted. According to P.W.1, it is the usual practice of his father to go to the shop after taking dinner and sleep there, and on the date of occurrence namely 26.6.2005, when his father left to the shop, he forgot to take the outer key, and on seeing this, he (P.W.1) took the key and followed him. According to P.W.1, when the deceased was just crossing the house of the accused, it was the accused who asked him whether it was he who directed the customers to go to the shop of P.W.5, and it was replied in the negative by the deceased, and immediately, following the wordy altercation, the accused got inside his house, took M.O.1 sickle and attacked his father, and as a result, he died at the spot. As far as the occurrence spot is concerned, P.W.2 has spoken to the same. The evidence of P.W.2 stood as a piece of corroboration to the evidence of P.W.1. The ocular testimony projected by the prosecution through P.Ws.1 and 2 in respect of the occurrence, stood fully corroborated by the medical evidence projected through the evidence of the postmortem Doctor, P.W.6, and also the postmortem certificate, Ex.P9 issued by him.
9.Yet another circumstance against the appellant/accused was the recovery of the weapon of crime, M.O.1, sickle, and also the clothes M.O.4, shirt, which was worn by the accused at the time of occurrence. All the material objects recovered from the place of occurrence and from the dead body of the deceased and also M.Os.1 and 4 were all subjected to chemical analysis. Accordingly, reports were received. A perusal of the serologist's report would indicate that in respect of the shirt worn by the accused, and the clothes worn by the deceased at the time of occurrence, blood group was found to be tallying, and thus the scientific evidence was also in favour of the prosecution. All would go to show that the prosecution has brought home the guilt of the accused.
10.Now, as regards the contentions put forth by the learned Counsel for the appellant, this Court is unable to see any merit in the same. As far as the FIR was concerned, the case was registered on the strength of Ex.P1 report. P.W.1 has been examined, and he has also spoken to the fact that it was he who gave Ex.P1 report. Ex.P1 report was received by P.W.11, the Sub Inspector of Police. The giver of the complaint and the person who received the same both have been examined, and on the strength of the said document, a case came to be registered. Thus it leaves no doubt in the mind of the Court.
11.As far as other contentions are concerned, they do not carry any merit whatsoever. It is true that the blood group found in the sickle was not actually tallying with the blood group on the clothes which were worn by the deceased at the time of occurrence. But, as noticed above, the blood group found in the clothes worn by the deceased and that of the accused was found to be tallying, and thus, the contentions put forth by the learned Counsel do not carry merit, and hence they are liable to be rejected and accordingly rejected.
12.As far as the second line of argument is concerned, this Court is able to see force in the same. Even according to the prosecution and also according to the eyewitnesses, both the accused and the deceased were doing jaggery business and P.W.5 was also doing the same business, and the accused was doing the business profitably, and later, he sustained loss, and he was under the impression that it was the deceased who directed the customers to go to the shop of P.W.5, and on the day when the deceased was proceeding to his shop, he crossed the house of the accused, and at that time, the accused was actually standing in front of his house, and he questioned the deceased whether it was he who directed the customers to go to P.W.5's shop, and when it was replied in negative, there was actually a wordy altercation. Following the sudden quarrel, the accused got into the house, took M.O.1 sickle, and attacked him twice and caused his death. Thus it wold be quite clear that there was no intention on the part of the accused nor was there any premeditation, but it was due to the sudden quarrel that took place at the spot. Under the circumstances, this Court is of the considered opinion that it is not a case where the Court could find the appellant/accused guilty under Sec.302 IPC, but only under Sec.304 (Part I) of IPC, and awarding of 7 years Rigorous Imprisonment would meet the ends of justice.
13.Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court under Sec.302 IPC are set aside, and instead, the appellant/accused is convicted under Sec.304 (Part I) of IPC and is directed to suffer 7 years Rigorous Imprisonment. The sentence already undergone by him shall be given set off. The fine imposed by the trial Court will hold good.
14.With the above modification in conviction and sentence, this criminal appeal is dismissed. It is reported that the appellant is on bail. Hence the Sessions Judge shall take steps to commit him to prison to undergo the remaining period of sentence.
nsv To:
1.The Principal Sessions Judge Erode Division at Erode
2.The Inspector of Police Nambiyur Police Station Erode District (Crime No.158/2005)
3.The Public Prosecutor High Court, Madras