(The judgment of the court was made by M.CHOCKALINGAM,J) The challenge is made to the Judgment of the learned Principal Sessions Judge, Thoothukudi made in S.C.No.167 of 2004, whereby the sole accused/appellant stood charged under Sections 449, 302, 307 and 506 (ii) IPC and awarded the punishment which reads as follows:-
S.449 IPC - 5 years RI and Rs.500/- fine, in default to undergo 1 year RI S.302 IPC - Life imprisonment and Rs.1000/- fine, in default 1 year RI.
2. The short facts necessary for the disposal of this appeal could be stated thus:-
a)P.W.4 is the son of Chitiraikani, since deceased in the incident that took place in Kalvoy Village. P.W.1 is the cousin son of the deceased. He was also residing in the very same village. The accused-appellant who belonged to the same village had no job. It is his usual practice to threaten people and extract money. On the date of occurrence, that was on 14.05.2002, P.W.1 and P.W.4 were standing along with the deceased in front of the house. At that time, the accused came over there. He was demanding Rs.1,000/- from the deceased. She denied payment. Immediately, by using filthy language, he assaulted her with an Aruval on the left side of her neck and different parts of the body. Immediately, P.W.4 came to the rescue and intervened. He was also attacked severely by the accused with Aruval. Thereafter the accused fled away from the place of occurrence.
b) Both severely injured Chitiraikani and the said Rajesh P.W.4 were taken to the Tirunelveli Medical College Hospital, where P.W.2, the Doctor was on duty. He examined both of them and declared Chitiraikani dead and he gave treatment to P.W.4, from whom he found number of injuries and X-rays were also taken. A copy of the Accident Register regarding the injuries found on P.W.4 is marked as Ex.P.2. An intimation was given to the Outpost Police station. P.W.8, Grade I Head Constable took the message and he also passed on the same to the respondent police station. P.W.12, Sub Inspector of Police of Seithunganallur Police Station, on receipt of the intimation from the Outpost Police Station, Palayamkottai, proceeded to the hospital and recorded the statement of Chinnadurai P.W.1 at 22.00 hours, which was marked as Ex.P.1. Thereafter he returned to the police station and registered a case in Cr.No.74 of 2002 under
Sections 302 and
307 IPC. The printed copy of the FIR was marked as Ex.P.16. The original FIR and also Ex.P.1 were dispatched to the concerned Judicial Court.
c)On receipt of the copy of the FIR, P.W.13, the Inspector of Police at Eral, took up the investigation, proceeded to the scene of occurrence and made an inspection in the presence of two witnesses and prepared Ex.P.6, the Observation mahazar and Ex.P.17, the rough sketch. Further, he recorded the statement of the witnesses. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.18, the inquest report.
d)The dead body of the deceased was sent to the hospital, for the purpose of autopsy. P.W.3, the Doctor, attached to the Tirunelveli Medical College Hospital, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.5, the post-mortem certificate, and has opined that the deceased would appear to have died out of the injuries sustained and of shock and haemorrhage.
e)Pending investigation, the Investigator arrested the Accused on 17.05.2002 at about 05.00 a.m. at Karungulam in the presence of P.W.7 and other witnesses. when he voluntarily made confessional statement, the same was recorded, the admissible part of which was marked as Ex.P.8. Pursuant to which, he produced M.O.1, Aruval, and the same was recovered in the presence of the witnesses under a cover of mahazar.
f) The accused was sent for judicial remand and all the material objects recovered from the place of occurrence, from the dead body of the deceased and from the accused were sent for chemical analysis along with a requisition given by the Investigating Officer to the concerned Judicial Magistrate. Ex.P.14, the Chemical analyst's report and Ex.P.15 the Serologist's report were received. On completion of the investigation, the Investigating Officer has filed the final report before the concerned court, which in turn has committed the case to the court of sessions and necessary charges were framed and the case was taken up for trial.
g) In order to substantiate the charges, at the time of trial, the prosecution examined 13 witnesses and marked 18 exhibits and also 7 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under
Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. No defence witness was examined. The lower court, after hearing the arguments of the counsel and considering the materials available on record, took the view that the prosecution has proved the case beyond reasonable doubt and recorded a finding that he was found guilty in respect of the charges and awarded the punishment as narrated above. Under these circumstances, this criminal appeal has arisen before this court at the instance of the accused appellant.
3.Advancing arguments on behalf of the appellant, Ms.S.Devasena, the learned counsel, in short, would contend that the prosecution case is rested on the evidence of P.W.1 and also P.W.4, who are all close relations and therefore their evidence have got to be scrutinized carefully. A careful exercise if made would clearly indicate that their evidence was inconsistent with each other and apart from this, such an occurrence could not have taken place at all and the medical opinion which was canvassed also not in favour of the prosecution.
4. Added further, the counsel that in the instant case, accused was also a native of the very same place and the prosecution came out with a story that it was the usual practice of the accused by extracting money from the third parties, since he was jobless, by threatening them. But, in that regard, there is no investigation and the said fact was not proved and hence a false case was foisted against the accused-appellant.
5. Advancing the further argument, learned counsel would submit that insofar as arrest and recovery is concerned, if the evidence is scrutinized, it should have got to be brushed aside. But the lower Court has failed to do so and in such circumstances, he is entitled for an acquittal. Added further, the learned counsel that even assuming the case of the prosecution that it was he who caused severe death injuries to the deceased and also caused injuries to P.W.4, it is a case where the Court has to take a lenient view for the simple reason that preceding the occurrence, there was a quarrel and there was a sudden provocation, which resulted in the act of the accused and in such circumstances the act of the accused would not attract the penal provision of murder and hence it has got to be considered by the Court.
6.The court heard the learned Additional Public Prosecutor on the above contentions.
7.The court has paid its anxious consideration on the submissions made and also scrutinized the materials available.
8. It is not in controversy that one Chithiraikani, mother of P.W.4 was done to death in an incident that took place on 14.05.2002 at about 06.30 p.m. at Kalvoy Village, the place of occurrence. In order to substantiate the same, the prosecution has not only projected the evidence through the injured and also eyewitnesses, but also relied on the medical evidence. P.W.3, the Doctor who issued Post Mortem Certificate has been examined. The fact that Chithiraikani died out of homicidal violence was never denied by the appellant at any stage of the proceedings and hence it has got to be recorded.
9. In order to substantiate the case of the prosecution, P.W.4, who was injured in the very same transaction has been examined as a witness, apart from P.W.1, an eye witness. It is a settled position of law that in a given case like this, where one of the eyewitnesses happened to be an injured, the evidence of the injured witness cannot be discarded unless and until a strong circumstance is noticed or a reason is brought forth. It is true that P.Ws.1 and 4 are closely related to the deceased. But, by applying the careful scrutiny test, their evidence has inspired the confidence of the Court. From their evidence, it is quite clear that the occurrence has taken place at 06.30 p.m. On the date of occurrence, when P.W.1, P.W.4 and the deceased were standing in front of the house, it was the accused who came over there and demanded Rs.1,000/- from her. When she refused to pay, immediately, he attacked her with Aruval M.O.1 and caused her death. When P.W.4, her son, went to her rescue naturally, he was also attacked by him and P.W.4 sustained severe injuries and thus the evidence of P.W.4 in respect of the above factual position also stood in full corroboration by the evidence of P.W.1, an eyewitness. In the instant case, the evidence of P.W.4, the injured and P.W.1 are convincing, clinching and acceptable and hence there is no reason noticed by the Court to disbelieve or discard their evidence. The medical opinion canvassed by the prosecution through P.W.3 Doctor also stood in full corroboration with the ocular testimony and apart from this, at the time of arrest, the accused has voluntarily given confessional statement and the same was recorded by the Investigating Officer in the presence of witnesses and consequent upon the same, M.O.1 Aruval, weapon of crime was produced by the accused and witness in this regard has been examined before the Court. When all these put together would clearly show that the accused was the person who caused the death of Chithiraikani by attacking her with an Aruval indiscriminately and also caused injuries and attempted on the life of P.W.4 and thus in the face of the overwhelming evidence found in the instant case, the contentions putforth by the learned counsel for the appellant do not carry any merit whatsoever. Hence, they are rejected.
10. Coming to the next question as to the nature of the act of the accused, the Court is of the considered opinion that it is not a case where the Court can even consider the plea put forth by the appellant as such. So far as the appellant was concerned, he was not even a relation to the deceased. He made a demand of Rs.1,000/- and to which she denied the payment. Immediately, he took an aruval and cut her and thus when the appellant who was not in a position to get money from the other side, and when the deceased was noway bound to make the payment, it would be quite clear that it was an unlawful demand. When an unlawful demand was made, there was nothing to provoke him or there cannot be any reason to quarrel and to attack her. Apart from that, as no quarrel was also noticed, the act of the accused attacking with Aruval indiscriminately can be inferred that it was done with an intention to cause her death. Apart from this, when P.W.4 intervened to the rescue of his mother, he was also attacked by the accused and was caused severe injuries and therefore, it was a case of criminal trespass ultimately done by the accused for the said purpose and also caused death of Chithiraikani and attacked P.W.4 and all these evidence brought before the trial Court were well considered and the lower court has given a very reasoned judgment, which in the opinion of the Court does not require any interference either factually or legally. Hence the appeal fails and the same is dismissed.
rg To
1.The Principal Sessions Judge, Thoothukudi
2.Seithunganallur P.S. Thoothukudi District.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.