S. Nagamuthu, J.@mdashThe appellant is the sole accused, in S.C. No. 85 of 2009, on the file of the learned Additional District and Sessions Judge, (FTC), Periyakulam. He stood charged for offences under Sections 341, 302 and 324 IPC. By judgment, dated 28.1.2011, the trial Court convicted him for the offences under Sections 341 and 302 IPC and acquitted him under the charge for the offence u/s 324 IPC. For the offence u/s 341 IPC, the trial Court imposed a punishment of fine of Rs. 100/-, in default to undergo rigorous imprisonment for two weeks and for the offence u/s 302 IPC, the trial Court imposed a sentence of imprisonment for life, and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for three months. The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant is before this Court with this criminal appeal. The case of the prosecution case in brief would be as follows:
The deceased in this case was one Viji, The accused is the husband, P.W. 1 is the mother, P.W. 2 is the father and P.W. 3 is the aunt of the deceased. The marriage between the deceased and the accused took place 6 to 7 years ago. Out of the said wedlock, they have got two children. Until the 2nd child was born, the deceased and the accused were living together happily. Thereafter, the accused developed suspicion over the fidelity of the deceased. On such suspicion, the accused started causing cruelty to the deceased. Four days prior to the occurrence, the deceased had come to her parental home. On 17.4.2009 at about 7.00 p.m., P.Ws. 1 to 3 and the deceased were proceeding to the local market at Bodi village. P.W. 1 and the deceased were going ahead of P.Ws. 2 and 3. When they were nearing the Public toilet near Kottai Karupusamy temple, the accused suddenly emerged from a nearby bush. He was armed with a knife. On rushing towards the deceased, he pulled the tuft of the deceased by saying that he would not leave her without killing and started attacking her with knife. He stabbed the deceased on her chest, abdomen, neck and other parts of the body. The deceased raised alarm. P.W. 1 made an attempt to prevent further attack. When P.W. 1 tried to intervene, the accused attacked her also by stabbing on her head and left hand. The accused pushed her aside and so, P.W. 1 fell down. The deceased fell down in a pool of blood and died instantaneously. The accused fled away from the place of occurrence with the weapon. On hearing the alarm raised, P.W. 5 came to the place of occurrence, P.Ws. 1 to 3 are illiterates, who do not know even to read and write. Therefore, P.W. 1 narrated the occurrence to P.W. 5, who is an literate person P.W. 5 reduced the same into writing by way of complaint (Exhibit P-1). P.W. 5 also signed in the said document in witness of his drafting the complaint, as dictated by P.W. 1.
2. Thereafter, P.W. 1 proceeded to Bodi Town Police Station at 10.40 p.m. and presented Exhibit P-1 complaint to P.W. 18, the then Sub Inspector of Police attached to the Bodi Town Police Station. On the basis of Exhibit P-1, complaint, P.W. 18 registered a case in Cr. No. 248 of 2009 for the offences under Sections 341, 324 and 302 IPC against the accused. Exhibit P-8 is the First Information Report. Then, he forwarded both Exhibit P-1 and Exhibit P-8 to the Jurisdictional Magistrate and both were received by the Jurisdictional Magistrate at 11.45 p.m. P.W. 18 handed over the case to P.W. 19, the then Inspector of Police, for investigation.
3. Taking up the case for investigation, P.W. 19, proceeded to the place of occurrence, where, in the presence of P.W. 6 and other witnesses prepared an Observation Mahazar in respect of the place of occurrence as well as a Rough Sketch. Exhibit P-9 is the Observation Mahazar and Exhibit P-10 is the Rough Sketch. Then, he recovered bloodstained earth and sample earth from the place of occurrence in the presence of the same witnesses under Exhibit P-11 Mahazar. M.O. 7 is the bloodstained earth and M.O. 8 is the sample earth. Then, he recovered a small amount of tar portion from the road with bloodstain under M.O. 9. Similarly, a tar portion of the road without bloodstained was also recovered (M.O. 10). Then, he examined P.Ws. 1 to 5 and few more witnesses. On completing the inquest, he prepared Exhibit P-12, inquest report. Then, forwarded the body for postmortem.
4. P.W. 12 Vidya an Assistant Surgeon attached to Bodi Government Hospital conducted autopsy on the body of the deceased at 10.30 a.m. on 18.4.2009. During postmortem she found the following injuries:
1. A stab injury 4 cm x 2 cm, situated 6 cm lateral to the midline 4 cm above the costal margins entering the right thoracic cavity and injuring the underlying lung.
2. A stab injury 6 cm x 4 cm situated 3 cm below the xiphisternum running horizontally 4 cm lateral to the midline an right sided of the abdomen, entering the abdominal cavity injuring the liver.
3. A stab injury 4 cm x 0.5 cm, 1 cm lateral to injury No. 2 on the right side running obliquely from below downwards entering the abdominal cavity.
4. A oblique cut injury 6.5 cm x 2.5 cm x bone depth situated 4 cm above the injury No. 1.
5. A transverse cut injury 4 cm x 2 cm x bone depth, situated 2 cm medial to injury No. 4.
6. A stab injury 6 cm x 2 cm x muscle depth on the back of neck on the right side running obliquely from below upwards injuring the underlying muscles and nerves.
7. A stab injury 4 cm x 2 cm x bone depth, situated 4 cm below and 6 cm lateral to the right shoulder joint on the back.
8. A stab injury 2 cm x 0.5 cm x bone depth 0.5 cm below and 2 cm lateral to the left shoulder joint on the back.
9. A horizontal cut injury 12 cm x 2 cm x bone depth, situated 15 cm above the lateral malleolus on the lateral side of the left leg.
10. Abrasion over the left wrist in the anterior wrist.
11. Contusion in the left shoulder.
She opined that the deceased would appear to have died of shock and hemorrhage due to injuries to vital organs, namely lungs and liver 12 to 14 hours prior to autopsy.
5. P.W. 1 was sent to the hospital, as she had sustained injuries. P.W. 13, doctor, Ravichandran, attached to Bodi Government Hospital, examined her and prepared Exhibit P-7 Accident Register. P.W. 1 told him, that she was attacked by a known person at 7.00 p.m. on 17.4.2009. P.W. 13 opined that the injury is simple in nature.
6. Continuing the investigation, P.W. 19, arrested the accused on 18.4.2009 at 3.00 p.m. at Bodi Meenatchipuram Villaku in the presence of P.W. 11 and another witness. On such arrest, he gave a voluntary confession which was reduced into writing by P.W. 18. In the said confession, he had disclosed the place where he had hidden the knife. In pursuance of the said confession statement, he took P.W. 18 and other witnesses to Meenatchipuram Villaku and produced the knife and the lungi which were kept in polythene bag in a bush. P.W. 18 recovered the same under a Mahazar. Then, he forwarded the case to the Court for remand and also forwarded the Material objects barring the polythene bag. Then, he examined the doctors and collected the medical records. He made a request to the Judicial Magistrate to forward the material objects for chemical examination. Exhibit P-13 is the chemical analysis report and Exhibit P-14 is the serologist report. According to Exhibit P-14 human blood was found on M.O. 5-knife, M.O. 6-lungi and other articles. As per the Serologist Report, the blood group of the bloodstain found on the lungi is of ''A'' group. Similarly, the human blood found on the dress materials of the deceased recovered from the body are also of ''A'' group. The blood grouping of the blood found on the knife was inconclusive. On completing the investigation, P.W. 18 filed charges sheet.
7. Based on the above materials, the trial Court framed charges under Sections 341, 324 and 302 IPC. The accused denied the charges. Therefore, he was put on trial, during the trial on the side of the prosecution as many as 19 witnesses were examined and 14 documents were exhibited, besides M.Os. 1 to 10 were marked. When the incriminating materials were put to the accused, he denied the same. Having considered all the above materials, the Trial Court found him guilty under Sections 341 and 302 IPC. However, the trial Court acquitted him from the charge u/s 324 IPC. That is how the appellant is before this Court with this appeal.
8. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor and perused the records carefully.
9. In this case, P.Ws. 1 to 3 have been examined as eye-witnesses. They have spoken to about the participation of the accused in the crime, more particularly about the overt acts of the accused. The trial Court has believed the presence of P.Ws. 1 to 3 at the time of occurrence and has acted on the evidence of these witnesses to hold the accused guilty. Apart from that, the trial Court has also relied on the evidence let in u/s 27 of the Indian Evidence Act, under which the bloodstained knife and the bloodstained lungi were recovered from the possession of the accused.
10. In this appeal, the learned counsel for the appellant would, at the out set, submit that since P. Ws. 1 to 3 are closely related to the deceased and highly interested in the case of the prosecution, their evidence should be closely scrutinised. Regarding this legal submission, there can be no quarrel at all. But, at the same time, we should not forget that simply because the witnesses are either closely related or highly interested, on that score, their evidence should be totally disbelieved. It is only a Rule of caution that the Court has to carefully analysis the evidence and it is not the Rule that the evidence of the closely related or interested witness should be rejected. Keeping in view the said settled principle of law, let us proceed further.
11. Nextly, the learned counsel for the appellant/accused would submit that P. Ws. 1 to 3 would not have been present at the time of occurrence and therefore, they should be totally disbelieved. In order to substantiate this contention, the learned counsel would rely on the evidence of P.W. 1 during cross-examination, wherein she has stated that the time of the occurrence was at 10.00 pm and the occurrence happened just behind Kottai Karuppu Samy temple. This according to the learned counsel, is quite contrary to the prosecution case, according to which, the occurrence was at 7.00 p.m. behind Kottai Karuppusamy temple near public toilet. In our considered opinion having regard to the fact that P.W. 1 is an illiterate person, who does not even know to read and write, we cannot give undue weightage for this minor contradiction as though it is an admission that the occurrence was at 10.00 pm. Apart from that, the learned counsel for the appellant/accused has not pointed out any other infirmity in the evidence of P.W. 1, so that P.W. 1 could be discarded.
12. Turning to evidence of P.W. 2, the learned counsel for the appellant would submit that in cross-examination, P.W. 2 has admitted that he went to the police station first and made a complaint. The learned counsel for the appellant also pointed out that P.W. 2 has further admitted, that in the said complaint allegedly preferred by him at the earliest occasion, he told that the deceased was found dead near Kottai Karuppusamy temple. Relying on this version, the learned counsel for the appellant would submit that P.W. 2 would not have been present at the place of occurrence. In our considered opinion, on this score the whole evidence of P.W. 2 cannot be discarded at all. As we have already pointed out, P.W. 2 is also an illiterate person and because of the same, there is some contradiction in his evidence, which in our considered opinion does not make his entire evidence unbelievable. We held that the presence of P.W. 2 is quite natural.
13. Turning to P.W. 3, the learned counsel for the appellant would submit that because P.W. 3''s presence at the place of occurrence was by chance, her evidence should not be believed. It is well settled that if a witness happened to be present at the place of occurrence by chance, it is necessary that the prosecution should explain to the Court as what was the occasion for the said witness to be present. This is the test which in turn is only a rule of caution. In this case, P.W. 3 has categorically stated that she followed the deceased and P.W. 2 to the market. Therefore, it cannot be said that her presence was improbable. We could even say that she was not a chance witness, but she was a quite natural witness. Therefore, the presence of P.W. 3 also cannot be denied. In view of the above, we reject this argument of the learned counsel for the appellant.
14. Nextly, the learned counsel for the appellant would contend that Exhibit P-1, the complaint, would not have come into existence at 10.45 p.m. on 17.4.2009 as it is projected. He would submit that the original information passed on to P.W. 18 has been completely suppressed and in its place Exhibit P-1 has been substituted after due deliberation. Though this argument appears to be attractive, we do not find any substance at all in the said argument. With a view to substantiate this argument, the learned counsel would rely on the evidence of P.W. 1, wherein she has stated in chief examination that after the occurrence, she went to police station and presented Exhibit P-1, but in his cross-examination, she has stated that her husband and her sister alone went to the police station and preferred the complaint. Similarly, P.W. 2 in cross examination has stated that he gave the complaint first to the police. Based on these two evidence, the learned counsel would try to make out a case to say that Exhibit P-1 would not have been the earliest information. But, we do not find any reason to hold that Exhibit P-1 is not the true first information to the police. As we have already pointed out P.Ws. 1 and 2 are illiterates and since they were put under incisive cross examination, there were certain contradictions in their evidence. On that score, going by these minor contradictions, we cannot hold that their presence is doubtful and Exhibit P-1 would have come into being after due deliberation. From the perusal of documents, it could be seen that First Information Report was registered at 10.45 p.m. and it reached the Jurisdictional Magistrate at 11.45 p.m. Thus, there was absolutely no delay cither in preferring the complaint by P.W. 1 or in forwarding the same to the Jurisdictional Magistrate by the police. Prompt lodging of First Information Report, always, to some extent vouchers for the truthfulness of the information. In view of all the above, we have to reject the contention of the learned counsel for the appellant.
15. Nextly, the learned counsel for the appellant would submit that the accused has been acquitted for charges u/s 324 IPC and therefore, the presence of P.W. 1 would be doubtful. A perusal of the judgment of the trial Court would go to show that the trial Court has acquitted the accused from charge u/s 324 IPC solely on the ground that in Exhibit P-7-Accident register, P.W. 13-Dr. Ravichandran, had omitted to mention details of the injuries found on P.W. 1. According to the trial Court, the injuries were not independently spoken to by P.W. 13. It is only on this ground, the trial Court has acquitted the accused from the charge u/s 324 IPC. But, the trial Court has not given finding that P.W. 1 did not suffer injuries and that she was not present at the time of occurrence. Therefore, simply because the accused has been acquitted u/s 324 IPC, we cannot rush to the conclusion that P.W. 1 was not present at the scene of occurrence. P.W. 1 is an injured eye-witness and therefore, her presence cannot be denied at all, at any stretch of imagination.
16. Now, turning to the nature of injuries found on the deceased, P.W. 12, who conducted postmortem, had found as many as 9 stab injuries mostly on vital parts of the body like chest abdomen, neck etc. She has also opined that these injuries would have been caused by M.O. 1 knife. Apart from that, the lungi recovered from the accused contained ''A'' group blood. Though there is no evidence that this lungi was the one, which the accused was wearing at the time of occurrence, the recovery of M.O. 1-knife at the instance of the accused is an added strength to the case of the prosecution, which duly supports the evidence of P.Ws. 1 to 3.
17. Nextly, the learned counsel for the appellant would contend that even if the accused is held to be responsible for the death of the deceased, even then, the offence would fall only u/s 304 Part-I IPC For this, the learned counsel for the appellant would submit that the act of the accused falls under exception 1 to Section 300 IPC. In order to substantiate this contention, the learned counsel has relied on the confession of the accused made to P.W. 19, wherein he has stated that at the time of occurrence he requested the deceased to return to the Matrimonial home, but she scolded him in a filthy language, which provoked him to attack her. There could be no controversy that a confession made to the police officer by the accused cannot be used against him, but it can be used in his favour. But, in this case, the fact remains that the confession which is stated to be in favour of the accused has not been proved in evidence. What has been admitted in evidence is the disclosure statement made u/s 27 of the Indian Evidence Act, The other portion which are stated to be in favour of the accused was not been proved at all by the accused. The law is very clear, that a confession made can be used in favour of the accused. But, in this case, the confession stated to be in favour of the accused has not been proved in evidence in his favour. The learned counsel for the appellant would request this Court to consider the confession of the accused which forms part of the record. We are unable to do so, because using that part of the statement, which has not been proved in evidence is not permissible in law. Thus, there are no other materials available on record to even infer that the accused acted out of sudden provocation.
18. The learned counsel for the appellant nextly contended that the accused would have acted out of sustained provocation. But, unfortunately, we do not find any material to accept the said contention that the accused had sustained provocation and he acted on the same. Thus, this argument of the learned counsel for the appellant deserves no merit and the same has to be rejected. Accordingly, it is rejected.
19. In view of the forgoing discussions, we have no hesitation to hold that the accused came to the place of occurrence with an intention to cause death and he executed the same. Intention of the accused is a matter of inference. Such inference has to be made from various circumstances available on record. In this case, there are sufficient materials on record to infer that the accused had a clear intention to cause death of the deceased. First of all, the accused was hiding behind the bush waiting for the arrival of the deceased, that too armed with weapon. Nextly, he caused injuries numbering about 11. Out of the 11 injuries, 9 injuries are deep stab injuries caused on the vital parts. As a matter of fact, the first injury had pierced even lungs. Until the deceased fell down, the accused was repeatedly attacking her. All these facts would go a long way to establish that the accused had a definite intention to cause the death of the deceased. Thus, the act of the accused never falls within the first limb of Section 300 IPC. Therefore he is guilty of the offence u/s 302 IPC.
20. No argument has been advanced in respect of the conviction and sentence for the offence u/s 341 IPC, In respect of sentence also, we do not fine any materials to reduce even the fine amount imposed on the accused. In conclusion, we hold that the trial Court was right in convicting the accused for the offences under Sections 341 and 302 IPC and the sentence imposed for the said offences on the accused are also very appropriate. In the result, the appeal fails and the same is accordingly dismissed. The conviction and sentence imposed by the trial Court is confirmed.
