(Judgment of this Court was made by R.REGUPATHI, J.) All the four accused in the case are the appellants before this Court. Accused Nos.2 and 3 are the sons of A-1, the fourth accused is the father of the first accused, while the deceased is the son-in-law of A1.
2. The accused were tried by the learned Principal Sessions Judge, Ramanathapuram, in S.C.No.16 of 2000 on the allegation that after marriage between the deceased and the daughter of A-1, there were frequent disputes between the couple, therefore, the daughter of A-1 left the matrimonial home and was staying in the parent's house and thereby, the accused had grudge and animosity against the deceased and that on 01.11.1998 at 06.45 p.m., accompanied by P.W.1, the deceased came to the residence of the accused to take his wife along with him, at which time, A-4 caught hold of him and A1, armed with aruval, cut the deceased on the neck and A2 and A3 cut him on the head, fore-head, right hand with aruval, thereby, caused his death and in the same course of transaction, A-4, caught hold of P.W.1 and A-1 and A-2 attacked him with aruval on the palm, back and wrist, thereby attempted to murder him; and by Judgment of the trial Court, dated 29.10.2001, A1 to A3 were found guilty under
Section 302 r/w. 34 I.P.C. and sentenced to undergo life imprisonment and A1 was also convicted under
Section 307 I.P.C., while A-2 under
Section 324 I.P.C. and sentenced to undergo Rigorous Imprisonment for five years with a fine of Rs.2000/- with default clause and rigorous imprisonment for one year respectively and A-4 was found guilty under
Section 342 I.P.C. and sentenced to undergo simple imprisonment for two months. The sentences imposed on A1 and A-2 were ordered to run concurrently and challenging the verdict of the trial Court, the present appeal has been filed.
3. The prosecution, in order to substantiate its case, examined P.Ws.1 to 14, marked Exs.P.1 to P.22 and produced M.Os.1 to 13.
4. The facts, as unfurled from the evidence of prosecution witnesses, are narrated below in a compact manner:
(a) P.Ws.1 to 3 are cited as eye witnesses to the occurrence. P.W.1 is the cousin of the deceased. P.W.2 is the wife of P.W.1 and P.W.3 is related to the deceased.
(b) It is the evidence of P.W.1 that the deceased married the daughter of A1 (examined as D.W.1 in the case) seven years prior to the occurrence and they were living as husband and wife in the same village. Due to difference of opinion between the couple, they were frequently quarrelling and the accused used to compromise them. Prior to the occurrence, D.W.1 went to her parents' house on account of dispute with the deceased and was staying there. On the date of occurrence, accompanied by P.W.1, the deceased went to the house of A1 to bring back his wife D.W.1. The accused refused to send D.W.1 along with the deceased, whereupon a wordy quarrel ensued, in which, A1 armed with aruval, cut the deceased at the back portion of the neck, while A2 and A3 armed with aruval cut the deceased on the head and A4 caught hold of the deceased to facilitate the other accused to attack him. When P.W.1 shouted at the accused not to cut the deceased, A1 and A2 attacked P.W.1 with aruval. On hearing the noise, P.Ws.2 and 3 came to the scene of occurrence. The deceased fell down and died on account of cut injuries. M.Os.1 to 3 are the weapons used by A1 to A3.
(c) P.Ws.2 and 3 corroborated the evidence of P.W.1 about the motive and occurrence part of the prosecution case. P.W.6, younger brother of P.W.1, who came to the occurrence place, on finding the deceased lying with cut injuries, took him in a bullock cart to the Government Hospital accompanied by P.W.8.
(d) On 01.11.1998 at about 09.30 p.m., P.W.4, Medical Officer, Government Hospital, Kamuthi, admitted P.W.1 brought by P.W.8 and found him conscious and, after giving intimation to the police, gave him treatment and issued Wound Certificate Ex.P2, wherein he noted down the following:- "Wounds or injuries found on the person of a Male calling himself Veluchamy, S/o.Jebamalai, aged 32 years, an inhabitant of Perumal Kudumbanpatti, Mustakurichi (P.O), who was sent with Police intimation given, from... and accompanied by Rajkumar for report at to certain injuries said to have been caused on 1.11.98 at 6.45 p.m. and to be due to assault by one known person with thA;fWths; at his house at Perumalkudumbanpatti.
Identification and scar-marks:
1) A scar on left side of back.
The injured person was first seen by the undersigned at 1.11.98 at 9.30 p.m. and the examination was conducted at 9.30 p.m. on 1.11.98 on the -----, when the following injuries were found:
1) An incised wound 30 x 10 cm size, muscle depth on right side of back.
2) An incised wound in left forearm near wrist of 15 x 5 cm size with muscle depth.
3) An incised wound in left hand ulnar aspect 10 x 4 cms size with muscle depth.
4) An incised wound of 5 x 1 cm size, 1 cm depth on right palm below little finger and ring finger.
5) An incised wound of 4 x 1 cm size, 1 cm depth on right palm below thumb. Patient is referred to GRH, Madurai.
X-ray No.5079 X-ray Lumbar Spine - NAD X-ray Abdomen erect - NAD X-ray left hand Anterior/Oblique - NAD X-ray Right Hand Anterior/Oblique - NAD X-ray Left forearm AP/Lateral - Fracture of left ulna. D.O.A.: 2.11.98 D.O.D.: 3.11.98 I.P.No.824410 MLC No.54601 Opinion of Injury: GRIEVOUS".
(e) On 01.11.1998, at about 10 p.m., P.W.9, Sub Inspector of Police, Kamuthi Police Station, on receipt of information, reached the Government Hospital, Kamuthi and recorded the statement from P.W.1, who was getting treatment, in the presence of P.W.4, Medical Officer. After returning back to the Police Station, he registered a case at 11.00 p.m. in Crime No.214 of 1998 for offences punishable under
Sections 302 and
307 I.P.C. Ex.P1 complaint and Ex.P7 the First Information Report were entrusted with P.W.12, Police Constable to be forwarded to the Judicial Magistrate, Kamuthi and copies thereof to the Investigating Officer and the higher-ups.
(f) On 01.12.1998 at 12.00 midnight on receipt of copy of the First Information Report, P.W.13, the Investigating Officer reached the scene of occurrence and prepared Observation Mahazer and Rough Sketch Exs.P.13 and P.20 respectively, attested by P.W.7. At 1 a.m., he conducted inquest over the dead body of the deceased and examined the witnesses present at the scene of occurrence. Ex.P.21 is the Inquest Report. He recovered blood stained earth and sample earth from the scene of occurrence in the presence of witnesses under a cover of mahazer, attested by witnesses.
(g) On 02.11.1998 at about 12.00 noon, he examined P.W.4 and recorded his statement. At the Government Hospital, he recorded the statement of P.W.1, who was shifted by that time for treatment as in-patient. He recovered the blood stained cloths of P.W.1 under a cover of mahazer. The blood stained articles were forwarded to the Court for receiving opinion from chemical analyst. P.W.11, on receipt, forwarded the same and received Exs.P18 and 19, Chemical Report and Serological Report.
(h) The dead body of the deceased was forwarded with a requisition for conducting post mortem and P.W.5, Medical Officer, Government Hospital, Kamuthi on 02.12.1998 at about 01.30 p.m. conducted post mortem and issued Post Mortem Certificate Ex.P3, wherein he noticed the following: "External injuries:`
1) A deep incised injury on back of neck extending from left sternomastoid muscle encircling neck in back upto right sternomastoid muscle. cutting muscles, vessels and vertebral bond III cervical vertebral completely fractured and cut size bout 22 cm x 5 cm x bone depth.
2) An incised injury on left parieto occipital area skull size 15 cm x 3 cm x bone depth. Brain exposed membrances absent. On exploring injury intracranial haemmorrhage found. Bone fractured.
3) An incised injury on right parietal area skull size 12 cm x 1 cm x bone depth bone severed fractured. Brain exposed. membranes intact.
4) An incised injury on right side frontal area face size 4 cm x 1 cm x bone depth.
5) An incised injury on right thumb proximal phalanx area in hand size 2 cm x 1/2 cm x 1/2 cm.
6) An incised injury on dorsum of right hand size 2 cm x 1/2 x 1/2 cm.
7) An incised injury on frontal area face in between two eye-brows size 1 cm x 1/2 cm x 1/2 cm.
8) Abrasions on right little finger size 2 cm x 1 cm.
Eyelids open, nose, Ear, mouth No discharge found.
Tongue inside the mouth. Jaws clenched, Teeth complete, Thorax well formed. No fracture Ribs Abdomen uniform. Generative Organs Normal. Hands empty clunched. Heart 350 gms. weight. Chambers empty. Lungs 550 gms (N.C.) fluid larynx no foreight body found. Hyoid bone intact. Stomach : empty. Pancreas Wt. 150 gms. pale. Liver 1500 gms. (N.C.) pale. Spleen 150 gms. pale. Kidney 150 gms. Red colour.
Intestine: Small intestine small amount (N.C.) 100 ml. digested material. Appendix normal. Large intestine Empty.
Pelvis: No fracture pelvis.
Openning Head: Membrane ruptured. intracranial haemorrhage found left (N.C). parieto occipital and right frontal areas. Brain 1400 gms. Spinal column cervical vertebral III completely fractured out off separated from vertebral column".
The Doctor opined that the deceased would appear to have died of shock and haemorrhage due to head injury and neck injury, 19-21 hours prior to autopsy.
(i) The Investigating Officer came to know about the surrender of A1 to A4 before Judicial Magistrate, Tenkasi and took them into police custody on 18.11.1998 and in the presence of P.W.10 recorded their statements and the admissible portions thereof are Exs.P9 to 11. Consequently, M.Os.1 to 3, weapons of offence used by A1 to A3 were recovered. Since the Investigating Officer found injuries on A1, he forwarded him to the Government hospital, Kamuthi, for treatment. Thereafter, the accused were remanded to judicial custody. The Investigating Officer during the course of investigation examined the witnesses, received opinions from the experts and on conclusion of the investigation, filed final report on 31.01.1999 for offences punishable under
Sections 342,302,307,324 and
326 I.P.C.
5. With reference to the incriminating materials adduced by the prosecution, the accused were questioned under
Section 313 Cr.P.C, for which, they pleaded 'not guilty' and claimed innocence. On the side of the accused D.Ws.1 to 3 were examined and Exs.D1, Wound Certificate dated 18.11.1998 issued to A1 was marked.
6. The learned trial Judge, after examining the materials available and considering the submissions made by both sides, found the accused guilty and passed the order of conviction and sentence as aforementioned.
7. Learned counsel for the appellants, by pointing out that P.Ws.1 to 3 are closely related to the deceased; would state that P.W.1 himself admitted in his evidence that P.Ws.2 and 3 came to the scene of occurrence only after hearing the noise and they cannot be considered as witnesses for the occurrence and that, at the time of admission in the hospital, he told that one known person assaulted him, whereas, before Court, he deposed that two persons attacked him. Referring to the evidence of D.W.1, the wife of the deceased to the effect that her husband accompanied by P.W.1 outraged her modesty and also her younger sister, whereupon, she took an aruval and cut the deceased and P.W.1; would submit if such version is believed, the evidence of the alleged eye witnesses putforth by the prosecution is falsified. It is further submitted that admittedly the Investigating Officer at the time of taking the accused into police custody, noticed injuries on A1 and sent him to the Government Hospital for treatment, but the prosecution did not choose to mark the Wound Certificate issued for A1 and similarly, the injuries sustained by A1 have not been explained particularly when one of the injuries sustained by A1 was grievous in nature, and therefore, the positive presumption is that the deceased was armed with weapon and inflicted the injury on A1. The interested eye witnesses in particular P.W.1 did not even whisper about the injuries on A1, thus, even the genesis and origin of the prosecution case is cloudy. Even if the prosecution case as such is acted upon, it must be taken note of that the occurrence had taken place at the residence of the accused and though the deceased visited the residence of A1 in his capacity as son in law accompanied by his brother P.W.1, admittedly there was a quarrel between the accused and the deceased; therefore, intention or premeditation on the part of the accused to cause the death of the deceased cannot be alleged and it could be discerned that the occurrence might not have taken place in the manner as putforth by the prosecution and, in view of non-explanation of the injuries sustained by A1, the presumption is that the deceased/aggressor caused injury on A1 and only thereafter, in the course of reaction by the accused, the deceased and P.W.1 sustained injuries; therefore the offence under
Section 302 I.P.C. is not made out and the accused may be convicted for a lesser offence.
8. Per contra, learned Additional Public Prosecutor submits that the evidence of P.Ws.1 to 3 is cogent and convincing and further, the evidence of P.W.1 is corroborated through the testimonies of P.Ws.6 and 8, who took P.W.1 to the hospital and P.W.4, the Medical Officer, who gave treatment to P.W.1. After receiving intimation, P.W.12, the Sub Inspector of Police reached the hospital without any delay and from P.W.1 recorded the complaint/statement under Ex.P1, attested by P.W.4, the Medical Officer, to the effect that P.W.1 was conscious at that time and the First Information Report registered also reached the Court without any loss of time; therefore, there was no delay and the contents of the complaint cannot be doubted. Moreover, the alternative version putforth by D.W.1 cannot be accepted, since such story has been stated for the first time during trial and even in the evidence of D.W.1, the dispute and quarrel between the deceased and D.W.1 has been admitted. The Investigating Officer himself admitted that A1 had sustained injury, further it was he, who forwarded A1 to the Government Hospital for treatment. Since injuries sustained by A1 were not serious in nature, the Accident Register was not marked and no importance need be attached for non-explanation of the injuries. The case put forth by the prosecution is clearly made out through substantive materials and the reasons assigned by the trial Court for passing the order of conviction and sentence are well-founded and its ultimate order does not call for any interference.
9. We have given our thoughtful consideration to the rival submissions made on either side having regard to the materials available on record.
10. The deceased is the son-in-law of A1. A2 and A3 are the sons of A1 and A4 is the father of A1. The occurrence had taken place at the residence of A1. Admittedly the deceased and his wife D.W.1 had strained relationship and on the date of occurrence D.W.1 was staying at the residence of A1. It is the case of the prosecution that the deceased accompanied by his cousin P.W.1 went to the residence of A1 to bring back D.W.1 to his residence and on refusal by A1 to send back his daughter, a wordy quarrel ensued between the deceased and A1, in which the deceased was cut with aruval by A1 and his sons A2 and A3 and A4 aided them in commission of the offence. Such case of the prosecution is spoken to by the injured witness/P.W.1, who was also assaulted by A1 and A2. The occurrence is said to have taken place on 01.11.1998 at 06.45 p.m. and from the scene of occurrence, P.W.6, accompanied by P.W.8, took P.W.1 to the Government Hospital, Kamuthi situated at a distance of 12 Kilometres and reached the hospital at 09.30 p.m. P.W.4 Medical Officer attached to the Government Hospital, Kamuthi found the injured conscious and forwarded intimation to the police. P.W.12, Sub Inspector of Police, reached the hospital and recorded the complaint received from P.W.1 at 10.15 p.m. After reaching the Police Station, he registered the case at 11.00 p.m. The First Information Report forwarded from the Police Station was delivered to the learned Judicial Magistrate at 01.00 a.m. Therefore, there was no possibility for embellishment and introduction of new facts, since the complaint came into existence without any loss of time and reached the learned Judicial Magistrate without any further delay. Ex.P1 is corroborated not only by the oral evidence of P.W.1 and medical evidence as well as the testimonies of two other eye witnesses. Therefore the prosecution has substantiated its case beyond reasonable doubt. However the manner in which the occurrence originated has to be carefully scrutinized in view of the injury sustained by the first accused.
11. The first accused is none else than the father-in-law of the deceased at whose residence, the occurrence had taken place and the wife of the deceased was present there at the relevant time. It is the admitted case that the deceased and his wife D.W.1 were frequently quarrelling with each other. Only under such circumstances, it was decided by A1 and his family not to send D.W.1, the wife of the deceased along with him. Though the Investigating Officer admitted regarding the injuries sustained at the fingers of the first accused, no explanation has been offered on the side of the prosecution as to how such injuries were sustained, particularly, when one of the injuries was noted to be grievous in nature. From an overall assessment of the materials, we have no other option except to conclude that those injuries might have been caused by the deceased or P.W.1, for it was the deceased, who indulged in a wordy quarrel accompanied by P.W.1. Looking at the Wound Certificate issued for the injuries caused on A1, we find that the same would have been caused by a sharp edged weapon. The assault on the deceased is the outcome of a wordy quarrel and soon after entry of the deceased at the residence of the accused, the occurrence did not take place. We could presume that there was no intention or premeditation on the part of the accused initially to commit the offence. Though it is stated that aruval was used and availability of the same inside the residence cannot be disputed, in view of the facts and circumstances of the case, without any difficulty, we could infer that those injuries on the deceased and P.W.1 would have been caused after the deceased inflicted cut injury on A1. It is all the more possible that all the male members at the residence of A1 would have joined together and assaulted the deceased and P.W.1 and under such circumstances, we can come to a conclusion that the accused have exercised their right of their defence. However, looking at the Post Mortem Certificate and the Wound Certificate issued to P.W.1, we are of the considered opinion that the accused have exceeded their limit in retaliating both the deceased and P.W.1. Therefore, We hold that
Section 302 I.P.C is not attracted in this case and that appellants 1 to 3/accused 1 to 3 are liable to be punished under
Section 304(I) I.P.C.
12. Consequently, the order of conviction and sentence passed by the trial Court as against appellants 1 to 3/accused 1 to 3 under
Section 302 I.P.C, is modified as one under
Section 304(I) I.P.C and they are sentenced to undergo rigorous imprisonment for seven years. The conviction and sentence imposed as against A1 under
Section 307 I.P.C., A2 under
Section 324 I.P.C. and A4 under
Section 342 I.P.C. stand confirmed. The sentences passed against accused 1 and 2 are ordered to run concurrently and all the accused are eligible for "set off" in respect of the period of imprisonment, they have already undergone.
13. It is reported that, while entertaining the appeal, the substantive sentence of imprisonment was suspended by this Court, enlarging appellants 1 to 3/ accused 1 to 3 on bail. In view of the conclusion reached now, the bail bonds executed by them before the Committal Magistrate shall stand cancelled and the trial Court is directed to take instant steps to secure those accused and committ them to custody so as to undergo the remaining portion of sentence.
14. With the above modification, this Criminal Appeal is partly allowed.
smn To
1.The Principal Sessions Judge, Ramanathapuram.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.