(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Principal Sessions Division, Dhamapuri, made in S.C.No.24 of 2008 whereby the appellants stood charged, and on trial, found guilty under Sec.302 r/w 34 of IPC and awarded life imprisonment along with a fine of Rs.2000/- 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 wife of the deceased Muniraj. P.W.2 is the daughter through first wife, while P.W.3 is the daughter of Muniraj and P.W.1. The accused had their garden behind the house of the prosecution witnesses. They were actually rearing fruit trees. In the past they were encroaching upon the landed property of P.W.1, and it was objected to by Muniraj all along in the past. There were often wordy altercations. On 21.6.2006 at about 5 or 5.30 P.M., there was a wordy altercation in respect of the fence. At that time, P.W.1 intervened and pacified the situation. Then the accused made a challenge stating "We will see to it and we will cut him." Then they left the place.
(b) On the same day, at about 7.30 P.M., P.Ws.1 to 3 were in their house, they heard the cry, came out and saw both the accused cutting the deceased with aruvals on the neck. When a huge crowd gathered, the accused fled away from the place of occurrence and when they were actually running, it was witnessed by P.W.4. All the witnesses went nearby and found Muniraj dead. Then P.W.1 proceeded to the respondent police station where P.W.11, the Sub Inspector of Police, was on duty. At about 9.00 P.M., P.W.1 gave a report, Ex.P1, on the strength of which a case came to be registered in Crime No.431/2006 under Sec.302 of IPC. The printed FIR Ex.P17 was despatched to the Court.
(c) On receipt of the copy of the FIR, P.W.12, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P18. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P19. The photographs, M.O.4, were taken. The dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy.
(d) The dead body was subjected to postmortem by P.W.9, the Assistant Surgeon, attached to the Government Hospital, Palacode, and she has issued a postmortem certificate, Ex.P16, with her opinion that the deceased would appear to have died at about 18 to 24 hours prior to autopsy and would have died due to shock and haemorrhage due to multiple injuries and injury to major blood vessels.
(e) Pending investigation, both A-1 and A-2 appeared before the Village Administrative Officer (VAO), P.W.8, of Kerakodahalli. They gave extra-judicial confessions, which were recorded by P.W.8. They are marked as Exs.P4 and P5 respectively. Both the accused were taken to the police station and produced before the Investigating Officer. They were enquired, and they came forward to give confessional statements voluntarily which were recorded. The admissible part of confession of A-1 is Ex.P6 and that of A-2 is Ex.P7. Pursuant to the same, A-1 produced M.O.1, aruval, M.O.2, aruval, M.O.3, dhothi, M.O.11, shirt, and M.O.12, pant, which were recovered under a cover of mahazar. Both were sent for judicial remand. All the material objects were placed for analysis by the Forensic Sciences Department on a requisition given by the Investigator through the Court. Ex.P11, the chemical analyst's report, and Ex.P12, the serologist's report, were received by the Court. P.W.13, the Inspector of Police, took up further investigation and on completion of investigation, 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 marched 13 witnesses and also relied on 19 exhibits and 12 material objects. On completion of evidence on the side of prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they 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 found them guilty and awarded punishment referred to above. Hence this appeal at the instance of the appellants.
4.Advancing arguments on behalf of the appellants, the learned Counsel would submit that the occurrence has taken place at about 7.30 P.M. on 21.6.2006; that P.Ws.1 to 3 were shown as eyewitnesses; that they were all wife and daughters of the deceased respectively, and thus, they were interested; that according to the evidence of P.W.4, there was a quarrel regarding the encroachment, between the parties for nearly about one year, and they had a grudge against the accused; that as far as the evidence of P.Ws.1 to 3 were concerned, it would be quite clear that they were actually discrepant; that from the evidence of P.W.5, an independent witness, it would be quite evident that the occurrence could not have taken place as put forth by the witnesses; that according to P.W.5, the occurrence has taken place nearby a lake area; that under the circumstances, the occurrence as spoken to by P.W.1 at the place and time had not taken place; and that they were all actually witnesses, who were taken by the prosecution to put forth a false evidence in order to strengthen its case.
5.Added further the learned Counsel that the medical opinion did not support the prosecution case; that it is highly unnatural that both the accused appeared before P.W.8, VAO, and gave extra-judicial confessions; that there was no need for them to give so; that apart from that, the VAO was an utter stranger; that it is highly improbable that both of them appeared before the VAO and gave extra-judicial confessions, and they were produced before the Investigating Officer, and they also gave confessional statements voluntarily pursuant to which they produced weapons of crime; that it is very artificial; that under the circumstances, the lower Court should have rejected that part of the evidence, and thus the prosecution has miserably failed to prove its case.
6.Added further the learned Counsel that even assuming that the factual position that both the accused cut the deceased on the neck and caused his death is shown to have been proved, the act of the accused would not attract the penal provision of murder; that even according to P.Ws.1 to 3, the property which was enjoyed by the accused originally belonged to Muniraj; that it was sold by him and they have been enjoying from that time; that apart from that, in respect of the alleged encroachment, there was a wordy altercation between the parties even on the date of occurrence at about 5.30 P.M.; that within a short span of an hour or two, the occurrence has taken place, and thus there was a provocation which was actually entertained by the accused and was also lingering; that this sustained provocation has culminated in the occurrence; that if to be so, the act would not attract the penal provision of murder, and this legal position has got to be considered by this Court.
7.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
8.It is not in controversy that one Muniraj, the husband of P.W.1, was done to death in an incident that took place at 7.30 P.M. on 21.6.2006. On the inquest made by P.W.12, the Investigator, the dead body was subjected to postmortem by P.W.9, the Medical Person, who has given her opinion as a witness before the Court and also through the contents of the postmortem certificate that he died out of shock and haemorrhage due to multiple injuries and injury to major blood vessels. The fact that he died out of homicidal violence was never disputed by the appellants before the trial Court. Hence the trial Court was perfectly correct in recording so.
9.In order to substantiate the fact that both the accused at the time of occurrence wielded aruvals, cut on the neck of the deceased and caused his death instantaneously, the prosecution marched three witnesses namely P.Ws.1 to 3. True it is, P.W.1 is the wife, and P.Ws.2 and 3 are daughters of Muniraj through two wives respectively. It is well settled proposition of law that before accepting the evidence of the close relations, the Court must exercise the test of careful scrutiny. Even after this test is applied, this Court is satisfied that their evidence has got to be accepted since it is cogent, convincing and acceptable. According to P.W.1, there was an incident that took place at about 5.30 P.M., and there was a wordy altercation between the accused on the one side and the deceased on the other regarding the fence. It was actually P.W.1 who pacified her husband and brought home. At about 7.30 P.M. that day, when P.Ws.1 to 3 were all sitting in the house, they heard the cry and came out to witness both the accused cutting him on the neck. Now, at this juncture, it is pertinent to point out that P.W.1 has categorically stated that at the time when the incident has taken place at 5.30 P.M., both the accused made a challenge that they will see to it and cut him, and thereafter only the occurrence has taken place. P.Ws.1 to 3 have categorically spoken about the fact that both the accused cut the deceased on the neck on both sides and caused instantaneous death. This ocular testimony projected by the prosecution through P.Ws.1 to 3 stood fully corroborated by the medical evidence canvassed through P.W.9, the Doctor.
10.Added circumstance was the recovery of the weapons of crime M.Os.1 and 3, aruvals, pursuant to the confessional statements given by them to the Investigator. Added further, both the accused appeared before the VAO, P.W.8. It is pertinent to point out that the VAO belonged to the same place, and no circumstance or reason is brought to the notice of the Court to disbelieve the evidence of the VAO, P.W.8. The extra-judicial confessions were made by them, and then he produced both of them before the Investigating Officer. He enquired them, and both of them volunteered to give confessional statements. They were recorded. Following the same, weapons of crime have been recovered. This would be a strong circumstance against the appellants.
11.At this juncture, the contention put forth by the learned Counsel for the appellants that the occurrence has not taken place at the place as claimed by the prosecution since according to P.W.5, an independent witness, the occurrence has taken place in the lake area cannot be accepted for the simple reason that the prosecution in order to put forth the place of occurrence, has placed two documents one the observation mahazar and the other the rough sketch. The two witnesses have been examined to that effect. That apart, the Investigator has also spoken as to the preparation of the documents. The documents when perused, would clearly indicate that the occurrence has taken place nearby the house of P.Ws.1 to 3 and that of Muniraj. Now at this juncture, it is pertinent to point out that these documents were never disputed by any one of the eyewitnesses before the trial Court. Having failed to do so, now the contention before the appellate forum cannot be accepted. Under the circumstances, it has got to be rejected. Accordingly, it is rejected.
12.It is true that in the evidence of P.Ws.1 to 3, eyewitnesses, there were discrepancies. But, in the considered opinion of the Court, they are all minor most, and it would not in any way tilt the balance or affect the case of the prosecution. Under the circumstances, the contentions put forth by the learned Counsel for the appellants regarding factual position are liable to be rejected, and accordingly, rejected.
13.Insofar as the second part of the argument that the act of the accused would not attract the penal provision of murder, the same cannot be countenanced for the following reasons. It is true that originally the landed property which was in the possession of the accused belonged to Muniraj, and he has sold to them. They were actually rearing the fruit trees. Now, from the evidence of P.W.1 it would be quite clear that they were go on encroaching into the property of Muniraj, and there were wordy altercations all along the period for the past one year. Even on the date of occurrence at about 5.30 P.M., there was a wordy altercation between the accused and the deceased. At this juncture, the evidence of P.W.1 has got to be given importance. According to P.W.1, there was a wordy altercation as usual, and she intervened, pacified the situation and brought her husband back, and at that time, both the accused made a challenge that they would see to it and cut him, and following the same, the occurrence has taken place at about 7.30 P.M. Thus it would be quite indicative of the fact that at the time when they left the place, both the accused made a vow and challenge, and consequent upon the same, they have acted so. Both the accused persons were armed with deadly weapons and cut the deceased Muniraj who remained unarmed at that time. All would go to show that it was an intentional act at the time of the occurrence, and there was nothing to provoke them since the wordy altercation that arose at 5.30 P.M., was actually pacified by P.W.1. From the evidence it would be quite evident that they were go on making encroachment into the property of Muniraj, and naturally he would have asked, and such a situation cannot be a reason to provoke the accused. If anything has go to be taken as provocation, it must emanate from the deceased and not from the accused. If there was any provocation and that was also on own making of the accused, the law cannot show any leniency. Thus the act of the accused cannot but be termed as murder. The trial Court was perfectly correct in bringing the act of the accused under the definition of murder and in awarding life imprisonment. This Court is unable to see anything to disturb the judgment of the trial Court either factually or legally.
14.In the result, this criminal appeal fails and the same is dismissed confirming the judgment of the trial Court.
(M.C.,J.) (C.S.K.,J.) 30-7-2009 Index: yes Internet: yes nsv To:
1.The Principal Sessions Judge Dharmapuri
2.The Inspector of Police Karimangalam Police Station (Cr.No.431/2006) Dharmapuri District
3.The Public Prosecutor High Court, Madras.
M.CHOCKALINGAM, J.
AND C.S.KARNAN, J.
nsv CRL.A.No.779 of 2008 Dt: 30-7-2009