(Judgment of the Court was made by M.CHOCKALINGAM,J) This appeal challenges the judgment of Sessions Division, Tirunelveli dated 9.8.2006 made in S.C.No.68 of 2006 wherein the sole accused/appellant stood charged and tried for the offences punishable under Sections 294(b), 302 and 506 (2) IPC and he was found guilty and convicted under Sections 302 and 506 (2) IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo 3 years rigorous imprisonment under section 302 IPC and to undergo 3 years rigorous imprisonment under Section 506 (2) IPC and sentences were directed to be run concurrently. The appellant was acquitted of the charge under Section 294 (b) IPC.,.
2. The short facts that are necessary for the disposal of this case can be stated as follows:
(i) PW.1 Madasamy is a rice vendor at Tirunelveli Junction. The deceased Durai is his son. The deceased was an auto driver by profession. PW.2 is a co- auto driver. The accused is also an auto driver. They used to park their autos at an auto stand nearby Aravind Eye-Hospital, Tirunelveli. On the previous occasion, the deceased told PW.2 that the accused/appellant is "xU bghl;l gad;" (an impotent). Then and there the accused challenged the deceased stating that one day he would see him what he would do.
(ii) On 25.8.2005 at about 4.30 p.m., PW.1 accompanied by his son the deceased, was walking through the Chemmin Hotel when PW.2 was parking his auto in a nearby auto stand. On the other side, below a tamarind tree, an auto bearing Regn.No.T.N.72-8697 was kept parked, which belonged to the accused. The accused was also standing nearby his auto. On seeing the deceased along with his father, the accused asked the deceased to "come here". Accordingly, the deceased went to nearby him. PW.1 was just smoking a cigarette. The accused and the deceased were talking to each other in a raised voice. At that time, the accused told the deceased that he was being called as "xU bghl;l gad;" (an impotent), which had defamed him and on saying so pushing the deceased inside his auto stabbed him with a knife on different parts of the body. PW.1 and PW.2 tried to save him by saying not to stab him but in vain. Immediately, the accused ran away from the place of occurrence along with the weapon of crime.
(iii) PW.1 proceeded to the respondent police station and gave a complaint to the Sub Inspector of Police by name Murugan and on the basis of which, a case came to be registered in Crime No.2114/2005 under
Section 302 IPC. Ex.P.14 F.I.R was despatched to the Court and to the higher officials.
(iv) On receipt of a copy of the F.I.R.,on 25.9.2005 at about 7.15 p.m., PW.10, the Inspector of Police, attached to the respondent police station, took up investigation and proceeded to the spot and made an inspection and prepared an Observation Mahazer Ex.P.2 in the presence of PW.4 and another witness. He also prepared a Rough Sketch Ex.P.15. He recovered blood stained earth MO.2 and sample earth MO.3. He also seized the auto used in the commission of offence under the cover of mahazer Ex.P.4 and the auto was marked as MO.6. He conducted inquest on the dead body of the deceased between 8.30p.m. and 11.00p.m., on the same day, in the presence of PW.1, PW.2 and one Ayyappan and then he prepared an inquest report Ex.P.16 in their presence. Then, the dead body was sent for post-mortem with a requisition to the Government Hospital, Tirunelveli.
(v) PW.9 Doctor, attached to the Government Hospital, Tirunelveli, conducted post-mortem on the body of the deceased and issued post-mortem Certificate Ex.P.13 wherein he has opined that the deceased would appear to have died of complications of multiple stab injuries.
(vi) Pending investigation, On 26.9.2005 at about 2.30 a.m., the investigator arrested the accused at Ambasamudram Bypass road in the presence of PW.5 and another witness. During the investigation, the accused voluntarily gave a confessional statement in the presence of PW.5 and another witness and the admissible part of the same was marked as Ex.P.5. Pursuant to the confession, the accused produced MO.1 knife, which was recovered under the cover of mahazer Ex.P.6. Thereafter, the investigator sent the accused for judicial custody.
(vii) All the materials recovered from the place of occurrence and from the dead body of the deceased were sent for chemical analysis pursuant to the requisition made, which resulted in two reports viz., Chemical Analysis Report Ex.P.10 and Serological Report Ex.P.11.
(viii) On completion of the investigation, the investigator filed a final report. The case was committed to the Court of Sessions. Necessary charges were framed against the accused.
3. In order to substantiate the charges levelled against the accused, the prosecution examined 10 witnesses and relied on 16 Exhibits and 13 MOs. On completion of the evidence on the side of the prosecution, the accused was questioned under
Section 313 Cr.P.C. on the incriminating circumstances found in the evidence of the prosecution witnesses, which was flatly denied on the part of the accused. No defence witness was examined. The trial Court after hearing the arguments advanced by either side and on considering the materials available on record, took the view that the prosecution has proved its case beyond reasonable doubts and found the accused guilty of the offence and imposed punishment as referred to above. Hence, the appeal has arisen before this Court.
4. Advancing arguments on behalf of the accused/appellant, the learned counsel appearing for the appellant, inter alia, would make the following submissions.
(i) In the instant case, there were two eye-witnesses viz., PW.1 and PW.2. PW.1 is the father and PW.2 is the close friend of the deceased. Under the circumstances, their evidence cannot be trustworthy as they have added falsehood in their evidence in order to see the accused being found guilty by the Court.
(ii) Added further, the learned counsel that medical opinion canvassed by the Doctor, who conducted post-mortem on the dead body of deceased, did not support the case of the prosecution.
(iii) The story of the prosecution that the accused arrested at Ambasamudram Bypass road and he gave a confessional statement and pursuant to the same, he produced MO.1, were all cock and bull story in order to strengthen the prosecution case.
(iv) The evidence adduced by the prosecution through those witnesses viz., PW.1 and PW.2 if carefully considered, there is no other option than to reject the case of the prosecution and it can be well stated that the prosecution has not proved the case beyond reasonable doubts.
(v) Admittedly, the deceased and the accused were auto drivers. Even according to the prosecution, the deceased was accompanied by his father and the deceased went to nearby the auto of the accused and there were wordy altercation between the deceased and the accused and this piece of evidence has bee spoken to by PW.1 and PW.2. In the earlier incident, the accused was called as "xU bghl;l gad;" (an impotent) and the accused was enraged over such saying and on wordy altercation the accused stabbed the deceased. In the instant case, the act of the accused is neither intentional nor premeditated and hence, it has got to be looked into by the Court.
(vi) Added further, the learned counsel that it is not a case of murder but a case of culpable homicide not amounting to murder.
5. Heard learned Additional Public Prosecutor appearing for the State on the above contentions.
6. The Court paid its utmost attention to the submissions and made a thorough scrutiny on the entire materials available on record.
7. It is not in controversy that the deceased, an auto driver was done to death in the incident that took place at 4.30 p.m., on 25.9.2005 at the place of occurrence as put-forth by the prosecution. In order to prove the fact that the deceased was died due to homicidal violence, the prosecution has not only relied on the evidence of PW.1 and PW.2 but also examined the Doctor, who conducted post-mortem, and who has categorically deposed that the deceased died due to homicidal violence and also produced post-mortem certificate issued by him. This fact was never questioned by the accused/appellant at any stage of the proceedings. Hence, without any impediment, it may be recorded that the deceased died due to homicidal violence and so recorded.
8. In order to substantiate the charge, the prosecution has examined PW.1 and PW.2. PW.1 is the father. He has deposed the entire incident in a graphic manner. PW.2 has also deposed categorically that the deceased was attacked by the accused. Though it is true, he was a co-auto driver to the deceased but it should not be forget that he was also a friend of the accused. Under the circumstances, one cannot expect PW.2, is only a friend of the deceased and he would give false evidence in the Court against the accused. Apart from that, the evidence of PW.1 stood fully corroborated by the evidence of PW.2 in respect of the occurrence. Further, the ocular testimony of the prosecution through PW.1 and PW.2 stood fully corroborated with the medical opinion.
9. Yet another circumstance against the accused was the recovery of MO.1 knife from the accused pursuant to the confession at the time of arrest.
10. Thus, in the considered opinion of the Court, all these circumstances would indicate the nexus of the accused with the crime and thus, the prosecution has proved the case factually that it was the accused who stabbed the deceased to death. The Court is unable to see any merit in any of the contentions put- forth by the learned counsel for the appellant in that regard.
11. Coming to the nature of the act of the accused, the Court is able to see force in the contention of the learned counsel for the appellant. In the instant case, the accused, the deceased and PW.2 were auto drivers parking their autos near Aravind Eye Hospital, Tirunelveli. It is quite clear that the deceased used to call the accused as "xU bghl;l gad;" (an impotent). The accused felt shy and it was going on in his mind causing obsession. There was also a wordy altercation between the deceased and the accused at the time of occurrence, which is evident from the evidence of PW.1, and that was following the earlier incident in which the accused was called as "xU bghl;l gad;" (an impotent) by the deceased. It would clearly indicate that the act of the accused neither premeditated nor deliberate nor wanton nor intentional but due to a quarrel that arose at the time of occurrence. Under the circumstances, the act of the accused cannot be termed as a murder but the act of the accused would attract the penal provision of
Section 304 Part I of IPC.
12. Considering the factual background, and the attendant circumstances, the Court feels that it will be appropriate to convict the appellant under
Section 304 Part I of IPC instead of
Section 302 IPC and awarding punishment of 7 years rigorous imprisonment would meet the ends of justice. Accordingly, the conviction and sentence imposed under
Section 302 IPC are modified and instead, the appellant is convicted u/s.304 Part I of IPC and sentenced to undergo 7 years rigorous imprisonment. The fine amount of Rs.10,000/-imposed under
Section 302 IPC is reduced to a sum of Rs.1,000/-. In respect of conviction and sentence imposed under
Section 506(II) IPC, sentence alone is modified and instead of 3 years Rigorous Imprisonment, the appellant/accused is sentenced to undergo rigorous imprisonment for one year. Accordingly, the conviction and sentence imposed on the appellant are modified. Both the sentences are directed to run concurrently. The remaining fine amount of Rs.9,000/- shall be refunded to the appellant/accused if already the fine amount of Rs.10,000/- was paid by the appellant/accused. The period of imprisonment already undergone by the appellant/accused is directed to be given set off.
13. With the above modification, the appeal is dismissed.
asvm To
1.The Principal Sessions Judge, Tirunelveli District.
2.The Inspector of Police, Palam Police Station Tirunelveli Town.
(Crime No.2114/2005)
3.The Additional Public Prosecutor, Madurai Bench of the Madras High Court, Madurai.