N.V. Balasubramanian, J.@mdashThis appeal is directed against the conviction and sentence of life imprisonment passed in S.C. No. 331 of 2001 on the file of Principal Sessions Judge, Coimbatore, imposed on the accused appellant for the offence punishable u/s 302 I.P.C. for having murdered one Chinnan, his father-in-law by cutting with aruval. The accused is the appellant.
2. The prosecution case is as follows:
(a) The appellant/accused is the son-in-law of the deceased Chinnan and on 5.5.2000 at about 6.00 p.m. the accused in a drunken state of mind, demanded money from his father-in-law Chinnan and when Chinnan refused to part with the money, the accused warned him of dire consequences. At about 10.30 p.m. on the same day, while the deceased was sleeping at the outside the house near the doorstep in E.B. Quarters of Mahalingapuram, Pollachi, the accused with the intention of murdering the deceased Chinnan, came there and cut the deceased Chinnan with aruval on his neck indiscriminately as a result of which the deceased Chinnan died on the spot itself and therefore the accused is liable to be punished u/s 302 I.P.C.
(b) In support of its case, the prosecution has examined P.Ws. 1 to 8 of whom P.Ws. 1 to 4 are eye-witnesses, P.W. 6 is the mahazar witness, P.W. 6 is the Village Administrative Officer who was present at the time of arrest of the accused, P.W. 7 is the Medical Officer who conducted post mortem examination and P.W. 8 is the Investigating Officer. The prosecution has also produced Exs. P-1 to P-17 and also material objects, M.Os. 1 to 15.
(c) As already noticed, the accused is the son-in-law of the deceased Chinnan, P.W. 1 is the daughter of the deceased and P.W. 2 is the son of P.W. 1 and grandson of the deceased. P.W. 3 is also another grandson of the deceased. P.W. 4 is the daughter of the accused. According to the prosecution, the deceased was having a house at Negamam and he sold the house for a sum of Rs. 25,000/- and out of the same, he paid a sum of Rs. 15,000/- to the accused and his wife, namely, the daughter of the deceased and kept a sum of Rs. 10,000/- for himself. After spending the money given to him, the accused demanded money from the deceased Chinnan that resulted in frequent quarrels and on the date of incident, at about 6.30 p.m., the accused, in drunken state of mind, demanded money to which the deceased refused and being infuriated by the refusal of the deceased to part with money, the accused warned him with dire consequences and left the place. At about 10.30 p.m. on the same date, the accused came again and cut the deceased indiscriminately with M.O.1 aruval which belonged to the deceased. The occurrence took place in the house of the deceased and so, witnessed by his daughter, P.W. 1 and other witnesses, namely, P.Ws. 2 to 4 who happened to be in the house. After the quarrel in the evening, P.Ws. 3 and 4 remained in the house of the deceased and they were watching television programme along with other inmates when the incident occurred at about 10.30 p.m. After hearing the noise, when P.Ws. 1 to 4 came out of the house, they saw the accused cutting the deceased with M.O.1 aruval on his neck and on seeing them, the accused fled the scene leaving the aruval and his chapels at the place of occurrence. P.W. 1 gave water to Her father and after drinking water, the deceased breathed his last.
(d) On the next day, that is, 6.5.2000 at about 7.30 a.m., P.W. 1 went to Police Station and gave the complaint, Ex. P-1 to P.W. 8 Inspector of Police. On the basis of Ex. P-1, P.W. 8 registered a case in crime No. 401/2000 of Pollachi Town East Police Station u/s 302 I.P.C. and prepared Express F.I.R., Ex. P-9 and sent the same to the Judicial Magistrate, Pollachi and copies to other higher officials. Thereafter, P.W. 8, Investigating Officer, visited the scene of occurrence and prepared Ex. P-10 rough sketch and Ex. P-2 observation mahazar in the presence of P.W. 5 and one Krishnasami. He caused the scene of occurrence to be photographed and M.O.11 series are the photographs. He seized from the scene of occurrence M.O.4 bloodstained earth, M.O.5 sample earth, M.O.6 bloodstained wooden log, M.O.7 polythene mat, M.O.8 bloodstained grass mat and M.O.1 aruval under Ex. P-3 mahazar in the presence of P.W. 5 and Krishnasami. He also seized M.O.2 bloodstained saree from P.W. 1 under Ex. P-4 mahazar in the presence of the same witnesses. P.W. 8, Inspector of Police conducted inquest over the dead body of the deceased from 10 a.m. to 1.15 p.m. on 6.5.2000 in the presence of Panchayatdars and prepared the inquest report Ex. P-11 and also examined P.Ws.1 to 4 and others. He sent the dead body for post mortem examination through a Police Head Constable along with Ex. P-7 requisition.
(e) P.W. 7 is the Civil Assistant Surgeon attached to the Government Hospital, Pollachi. On receipt of Ex. P-7 requisition from P.W. 8, he conducted post mortem examination on the dead body of the deceased on 6.5.2000 at about 3.00 p.m. and found the following injuries:
1. A cut injury over left mandible of 2" x 1" involving the bone.
2. A cut injury of 3" x 1" x bone deep present on the left side neck below mandible.
3. A cut injury of 3" x 1" x bone deep below wound No. 2.
P.W. 7 was of the opinion that the deceased would appear to have died of injuries of vital organs, carotid vessel on the left side and spinal column. He issued Ex. P-8 post mortem certificate. He has also stated that the above said injuries would have been caused by M.O.1 aruval.
(f) P.W. 8, Inspector of Police, on 9.5.2000 at about 11.15 a.m. arrested the accused in the Sundarakavundanur village bus stop building which is situate on Pollachi-Darapuram road in the presence of P.W. 6 Balasubramanian and one Thangaraj and recorded his statement, the admissible portion of which is marked as Ex. P-5. On the basis of Ex. P-5, the accused took P.W. 8 and his party to the place where he stayed, namely, Kamatchi house and from there he produced M.O.9 lungi and M.O.10 bloodstained shirt and P.W. 8 seized them under Ex. P-6 mahazar in the presence of witnesses and after that, P.W. 8 remanded the accused. P.W. 8 examined other witnesses and recorded their statement and he also seized other material objects. He forwarded the material objects along with Ex. P-13 letter to the Judicial Magistrate for sending them for chemical analysis. Ex. P-15 is the Chemical Analyst''s report and Exs.P-16 and P-17 are the Serologist''s reports. After completing the investigation, P.W. 8 laid the charge sheet against the accused.
3. The accused was questioned u/s 313 Cr. P.C. with reference to the incriminating circumstances found against him in the evidence and he denied the same.
4. Learned Principal Sessions Judge, on the basis of evidence, oral and documentary, found the accused guilty of the charge u/s 302 I.P.C. and convicted and sentenced him to undergo life imprisonment for the offence u/s 302 I.P.C. It is against the judgment of conviction and sentence, the present appeal has been preferred by the accused.
5. The point for consideration in the appeal is whether the prosecution has brought home the charge framed against the accused and the learned Sessions Judge was correct in convicting and sentencing the accused for life imprisonment u/s 302 I.P.C.
6. The first submission of Mr. Duraisamy, Learned Counsel for the appellant is that the first information report is a make-belief one and it is quite unnatural. Learned Counsel also referred to the evidence of P.W. 1 wherein she has stated that the first information report, Ex. P-1 was written in the place of occurrence by a relative, but she did not know the name of the relative who wrote the first information report. We are unable to accept the submission of learned onset fox the appellant. The first information report, Ex. P-1 was lodged on the next day 6.5.2000 at about 7.45 p.m. The purpose of lodging complaint is to initiate criminal proceedings and the court has to see that the prosecution has established the guilt of the accused by acceptable evidence. Further, it is very well to remember that P.W. 1 is an illiterate lady and her statement that first information report was written by a relative is acceptable. Moreover, when she was examined after a period of nearly two years, she might not have remembered the name of the relative who wrote the first information report and on that account, her statement cannot be discarded as her statement appears to be true and the first information report cannot be rejected on the plea that it is a make-belief first information report.
7. Learned Counsel for the appellant also submitted that the charge sheet itself was preferred within a period of five days. It is seen from the records that all the witnesses were examined by the Investigating Officer and when the investigation was completed and in the investigation, it was found that the accused committed an offence punishable u/s 302 I.P.C., the Investigating Officer immediately filed the charge sheet before the Judicial magistrate No. 1, Pollachi. We are of the view, the fact that the Investigating Officer acted in a proper manner is not a ground to hold that there is suspicion in the accusation made against the accused.
8. We have gone through the evidence or P.W. 1, who is an eye-witness. She is the daughter-in-law of the deceased. She has deposed that she saw the accuse cutting the deceased with aruval near his neck twice or thrice. She has also stated that when the life of the deceased was oscillating, he asked P.W. 1, hot to speak to the accused and only after taking water from P.W. 1, the deceased succumbed to the cut injuries inflicted by the accused. She has also stated that she was able to give first information report on the next morning. She is an eye-witness and she has stood the test of cross-examination and nothing has been elicited from her to shake the credibility of her testimony. P.W. 2 is also an eye-witness to the incident. He is a grandson of the deceased. He has also stated in his evidence that he saw the accused cutting the deceased dastardly and his evidence corroborates the evidence of P.W. 1. Another eye-witness P.W. 3 is also a grandson of the deceased. He has explained his presence in the scene. He has spoken about the previous quarrel between the deceased and the accused and also the incident in which the deceased died. P.W. 4 is the daughter of the accused and though she was aged 10 years at the time of giving evidence, it was found by the Court that she was competent to depose. She is also an eye-witness and she has deposed against her father. She has stated that the accused has committed the heinous crime to murder the deceased. We are of the view, the evidence of the witnesses, P.Ws.1 to 4 are reliable and they are eyewitnesses and they are close relatives of the accused and there is nothing to disbelieve their statements and nothing has been pointed out to establish that they have deposed against the accused because of some ill-will against the accused. So far as P.W. 4 is concerned, she is the daughter of the accused and she herself stated that she saw her father committing the heinous crime. She has stood the test of cross-examination. She has stated in her cross-examination that her father cut the deceased and after that he ran away from the scene. The evidence of all the witnesses clearly establish that the accused has committed the act of murdering the deceased.
9. Mr. Duraisamy, Learned Counsel for the appellant referred to the evidence of P.W. 6 and submitted that the evidence of P.W. 6 is quite unnatural. However, even excluding the evidence of P.W. 6, we are of the view, the evidence of P.Ws.1 to 4 who are all eye-witnesses would establish the guilt of the accused.
10. The evidence of all the eye-witnesses, P.Ws. 1 to 4 also establish the motive for the commission of crime. They have stated that the deceased owned a house which he subsequently sold and out of the sale consideration of Rs. 25,000/- the deceased gave Rs. 15,000/- to the accused, his son-in-law keeping the balance of Rs. 10,000/- for himself and after spending the sum given to him, the accused demanded more money from the deceased and when the deceased refused to part with the money, the accused picked up frequent quarrels with the deceased and warned the deceased with dire consequences at about 6 p.m. on the date of occurrence and after four hours later, the accused came again and committed the murder of the deceased. P.Ws.1 to 4 have explained the motive in their evidence cogently and there is nothing to disbelieve their evidence.
11. The statement of P.W. 1 is categorical and she has deposed about two incidents; one happened at about 6.30 p.m. on the fateful day and another at the time of murder of the deceased. She has also stated that she informed P.Ws.2 and 3 about the first incident and hence, her evidence establishes the presence of P.Ws.2 and 3 at the time of second incident. The necessity and occasion for their presence at the time of occurrence is established by the evidence of P.W. 1 which is corroborated by the evidence of P.Ws.2 and 3. She has also stated that on hearing the noise at about 11 p.m. she opened the door of her house which is an one-room quarter and noticed that the accused was cutting her father and on seeing her, the accused ran away from the scene dropping M.Os.1 and 3. Her statement that she was present at the time of incident has not been shaken during the course of cross-examination. She is the daughter of the deceased and her presence in the house at the time of occurrence cannot be doubted at all. The case spoken to by P.W. 1 is also supported by the evidence of P.Ws.2 and 3 and there is not much contradiction in their evidence. P.Ws.2 and 3 have stated in clear terms that they were in the house at the request of P.W. 1 as there was a quarrel between the deceased and the accused in the evening hours of the fateful day and after hearing the noise they opened the door and noticed the accused cutting the deceased and when they attempted to stop him, the accused ran away from the scene of occurrence leaving the aruval M.O.1 and chappals, M.O.3 and the material objects were identified by the witnesses. P.W. 4 is the daughter of the accused and she has also supported the case of prosecution and there is nothing to disbelieve the oral evidence of P.Ws.1 to 4 and so far as P.Ws.2 to 4 are concerned, their presence in the house cannot be doubted and we hold that all of them were present in the house and all are eye-witnesses to the incident.
12. The evidence regarding other circumstances strengthens the case of prosecution as investigation has been done in proper manner leading to the recovery of M.Os.9 and 10, the garments worn by the accused, and it is seen from the Serologist''s report, Ex. P-16 that M.Os.9 and 10 contained B-Group blood which is the blood group of the deceased. The prosecution also establishes the motive for the commission of the crime. The accused in his statement u/s 313 Cr. P.C. has also stated that the deceased has sold his house for Rs. 25,000/- and the accused was paid a sum of Rs. 15,000/- and the balance amount of Rs. 10,000/- was kept by the deceased. The motive for the commission of crime was established by the evidence of P.W. 1 that only on the refusal to part with the balance amount the quarrel had ensured between the accused and the deceased. P.W. 1 has also stated that at the time of first incident, when the deceased refused to part with the balance amount the accused threatened the deceased with dire consequences. Therefore we have no hesitation to hold that there was a wordy quarrel between the deceased and the accused and the evidence of P.Ws.1 to 4 establish that the accused alone has caused the injuries to the deceased which are fatal. We therefore hold that learned Principal Sessions Judge was correct in holding that the accused caused the fatal injuries to the deceased.
13. Learned Counsel for the appellant submitted that there were quarrels between the accused and the deceased and it was due to the sustained provocation the accused might have committed the crime and therefore the case of the accused would fall u/s 304 Part -IIPC. Learned Counsel, in support of his submission, relied upon the decision of this Court in Suyambukkani V. State Of Tamil Nadu (1989 L.W.(Crl.) 86) where this Court has brought out the development of law and the scope of sustained provocation and this Court held as under:
It is clear from the opinion of the important architects of the Indian codification that Anglo-Indian Codes, which were the first experiments in English language in the art of codification, in spite of their immense value, are far from being perfect and were intended to be overhauled from time to time. Therefore though technically the exceptions to S.300, I.P.C, appear to be limitative they can no longer be considered so, after the efflux of time. In fact, Courts have added one more exception known as ''sustained provocation''. The leading decision in that field is the well known
22. Now that it is clear that the exceptions under S.300, IPC, are not limitative, we have to examine whether Nallathangal''s syndrome can be considered as one of the exceptions. Since the Code in its structure makes the Exceptions limitative, Courts have to show restraint on circumspection in adding Exceptions and such additions should be ejusdem generis. In this connection, it is necessary to examine what is the true nature of the Exceptions. The Exceptions are in the nature" of important excusing circumstances and they have the following characteristics:
| Nature of the excusing Premeditation circumstance | III-will towards the victim |
| Exception 1 Sudden No provocation | Yes |
| Exception 2 Private de fence No | Yes |
| Exception 3 Discharge of Yes public duty | No |
| Exception 4 Sudden fight No | Yes |
| Exception 5 Consent of Yes the victim | No |
One thing is clear from the above analysis vie, in all the Exceptions either premeditation or ill-will is absent. Therefore, when both are present, it will be impossible to counter the matter as an exception.
The same view has been taken by this Court in Chandran, In Re (1988 L.W.(Crl.) 112) and Packiam V. State (1994 2 L.W.(Crl.) 607).
Learned Public Prosecutor submitted that the case of the accused does not fall within the scope of sustained provocation.
14. We are of the view, the submission made by Learned Counsel for the appellant is sustainable. There is no dispute that the deceased sold his house for a sum of Rs. 25,000/- and gave a sum of Rs. 15,000/- to the accused and kept the balance amount of Rs. 10,000/- for himself. The evidence of P.W. 1 clearly shows that the accused, after, spending his moneys, demanded the deceased to give him money from the balance amount and consequently, there were persistent quarrels between the accused and the deceased in respect of the balance amount of Rs. 10,000/- . The evidence of P.W. 1 shows that on 5.5.2000, on the fateful day, at about 6.30 p.m., the accused came in drunken state of mind to the house of the deceased and demanded the deceased to part with money. In the first information report P.W. 1 has stated that the accused was demanding money and there were frequent quarrels between the deceased and the accused. It is also seen from the statement made in the first information report that on 5.5.2000 when the accused demanded money, the deceased scolded the accused in a very strong language using the word dog and also filthy words, and the deceased also told the accused that he should not reside in the house. The accused is none other than the son-in-law of the deceased. When the father-in-law scolded the accused using the words like, dog and drove him out of the house particularly when he was in drunken mood, the scolding of the deceased and the driving the son-in-law out of the house would act as the last straw breaking the camel''s back. The accused naturally might have been provoked by the continuous quarrels between him and the deceased and by the continuous scolding of the deceased. It is also evident that at the time of second incident, the accused came to the house of the deceased unarmed and at the time of occurrence, there should have been a prior quarrel between the accused and the deceased and the accused used the aruval kept in the house of the deceased and cut the deceased. We find that the sustained quarrels between the deceased and the accused and the sustained scolding of the deceased against the accused who is none else than his son-in-law, the incident occurred. The fact that the accused came to the house of the deceased unarmed clearly shows that there was no premeditation, even though there was ill-will against the father-in-law and therefore, in the absence of premeditation, though there might have been ill-will coupled with extraneous circumstances that would transform the offence committed by the accused into one of culpable homicide not amounting to murder, punishable u/s 304 Part - IPC. Accordingly, we set aside the conviction and sentence u/s 302 IPC and instead, we find the accused guilty u/s 304 Part - IIPC. Regarding the sentence, it is stated that the accused is in jail and he has not been granted bail, either during the course of trial or pending appeal. Considering the period already undergone by the accused, we are of the view that the ends of justice would be met by sentencing the accused to the period already undergone.
15. In the result, the conviction and sentence u/s 302 IPC are set aside and the accused is found guilty of an offence u/s 304 Part - IPC and he is convicted and sentenced for the period already undergone. The appeal stands allowed to the above extent.
