(Prayer: Appeal is filed under Section 374(2) of the Code of Criminal Procedure against the Judgment dated 09.10.2015, made in S.C.No. 216 of 2011, on the file of the learned Sessions Judge, Mahalir Neethimandram, Thoothukudi.
S. Nagamuthu, J
1. The appellant is the sole accused in S.C.No.216 of 2011 on the file of the learned Sessions Judge, Mahalir Neethimandram (Fast Track Mahila Court), Thoothukudi. He stood charged for the offences punishable under Sections 450, 302 and 506(ii) of the Indian Penal Code. By judgment dated 09.10.2015, the Trial Court convicted the accused only under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for one year. The Trial Court acquitted the accused from the charges under Sections 450 and 506(ii) of the Indian Penal Code. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2. The case of the prosecution, in brief, is as follows:
2.1. The deceased, in this case, was one Mrs.Shanmugathai. P.W.3 is the son of the deceased and P.W.1 is the daughter of the deceased. P.W.3 had married the daughter of the accused, by name Gangadevi. The said marriage was celebrated in the year 2005. Out of the said marriage, they got a male and a female child. From the time of marriage onwards, there was frequent quarrel between the deceased and his wife. Mrs.Gangadevi wanted to set up a separate family with P.W.3, as she did not like to live in the joint family with the others. This developed into a further quarrel. A complaint to the police was also made in this regard.
2.2. While so, on 11.11.2010, the deceased was at her house. P.W.3 had gone to his Office. P.W.1 had also gone to the house of the deceased. At that time, the accused came to the house of the deceased. He enquired the deceased as to where P.W.3 had gone. The deceased told that P.W.3 had gone to his Office. They were talking among themselves for some time. The accused shouted at the deceased that she was the cause for P.W.3 not agreeing for a separate family. This resulted in a quarrel. In that quarrel, it is stated that the accused took out a knife and stabbed the deceased indiscriminately. P.W.1 raised alarm. The deceased fell down and died instantaneously.
The accused ran away from the scene of occurrence with a knife. P.W. 1, thereafter, called P.W.3 over phone and informed him.
2.3. After the arrival of P.W.3, along with P.W.3, P.W.1 went to Kovilpatti West Police Station and made a complaint at 06.00 p.m. on 11.11.2010. On the said complaint, a case was registered in Crime No.1026 of 2010 under Sections 450, 302 and 506(2) of the Indian Penal Code against the accused. Ex.P.1 is the complaint. Ex.P.15 is the First Information Report.
2.4. P.W.12, the then Sub-Inspector of Police, who registered the case, forwarded Ex.P.1 and Ex.P.15 to the Court through a Constable, which were received by the learned Magistrate at 08.00 p.m., on 11.11.2010.
2.5. P.W.13, the then Inspector of Police, took up the case for investigation. He went to the place of occurrence and prepared an observation mahazar and a rough sketch in the presence of the witnesses. He recovered bloodstained earth and sample earth from the place of occurrence in the presence of the same witnesses. Then, he conducted inquest on the body of the deceased and forwarded the dead body for post-mortem.
2.6. P.W.9, Dr.Suyambu Meenakshi conducted autopsy on the body of the deceased on 12.11.2010 at 07.00 a.m. She found the following injuries:
1) Cut injury 9 x 4 x 2 cm in right shoulder.
2) Stab injury 7 x 3 x extending upto inter peritoneum seen in right lumbar region of the abdomen.
3) Cut injury 2 x 1 x 1 cm in right side of abdomen in lumbar region 6 cm medial to injury 2.
4) Cut injury 9 x 4 x 2 cm (bone depth) in left elbow.
5) Cut injury 3 x 1 x 1 cm in left elbow 2 cm above injury 4.
6) Contusion 3 x 3 cm in left side of chest.
7) Cut injury 7x 3 x 3 cm in the back of left shoulder.
8) Stab injury 6 x 4 cm extending upto the peritoneum and small intestine exposed in left lumbar region of abdomen on exploration of the wound multiple serosal tears and multiple blood clots present in the small intestine.
9) Stab injury 8 x 4 in extending upto the peritoneum and small intestine exposed present in the left side of abdomen 5 cm lateral to injury 8. On exploration of the wound, multiple serosal tears with multiple blood clots present in small intestine.
On opening of thorax, 10th and 11th rib fractured in anterior aspect of left side heart - pale, lungs- multiple punctures present in left lower lobe. On opening of neck, hyoid bond intact, on opening of abdomen, stomach contain 100 ml of undigested food particles. liver - pale, spleen - pale, both kidneys - pale, small intestine - empty large intestine - distended with gas bladder - empty. Uterus - normal in size, uterine cavity - empty on opening of head, skull, no fracture, membrane - intact, Brain - pale the general appearance do tally the police report. Death would have occurred about 14 18 hours before autopsy post mortem concluded at 8.00 AM on 12.11.10. The deceased would appear to have died of shock and haemorrhage due to the injuries sustained."
2.7. Ex.P.14 is the post-mortem certificate. She gave opinion that the said injury would have been caused by a weapon, like knife. She further opined that the death of the deceased was due to shock and hemorrhage due to the said injuries.
2.8. P.W.13, the then Inspector of Police, on 12.11.2010 at 10.00 a.m., arrested the accused in the presence of the witnesses. On such arrest, the accused made a voluntary confession, in which, he disclosed the place where he had hidden the aruval. In pursuance of the same, he took the police and the witnesses to the place of hide out and produced M.O.1-knife. P.W.13 recovered the same under a Mahazar. On returning to the Police Station, he forwarded the accused to the Court for judicial remand. He collected the postmortem certificate, examined the doctor and few more witnesses and recorded their statements. At his request, the material objects were sent for chemical examination. The report revealed that there was human blood on the clothes recovered from the body of the deceased, but, not on the knife recovered from the accused. On completing the investigation, he laid charge sheet against the accused.
2.9. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused was questioned in respect of the charges, he denied the same and pleaded innocence. In order to prove the charges, on the side of the prosecution, as many as 13 witnesses were examined, 21 documents and 6 material objects were marked.
2.10. Out of the said witnesses, P.Ws.1 and 2 are the eye witnesses to the occurrence. P.W.1 has spoken about the entire occurrence. P.W.2 has spoken about the complaint made by P.W.1. P.W.3, the son of the deceased has stated that while he was at his office, P.W.1 informed him about the occurrence and then, he rushed to the place of occurrence. P.Ws.4 and 5 have turned hostile and they have not stated anything against the accused. P.W.6 also has turned hostile and he has not supported the case of the prosecution in any manner. He was expected to speak about the arrest of the accused and the confession made and the consequential recovery of M.O.1. P.W.7 has spoken about the arrest of the accused, the confession made by him and the consequential recovery of M.O.1. P.W.8-Head Clerk of the Magistrate Court has stated that he forwarded the material objects to Forensic Lab for chemical examination. P.W.9 has spoken about the post-mortem conducted and her final opinion regarding the cause of death. P.W.10-a Head Constable has stated that he handed over the First Information Report to the learned Magistrate at 08.00 p.m., on 11.11.2010. P.W.11 has stated that he handed over the dead body to the doctor for post-mortem. P.W.12 has stated about the registration of the case on the complaint of P.W.1. P.W.13 has spoken about the investigation done by him and the filing of final report.
2.11. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against him, he denied the same as false. However, he did not choose to examine any witness nor to exhibit any document. His evidence was a total denial. Having considered all the above materials, the Trial Court has convicted and sentenced the accused as detailed in the first paragraph of the judgment. That is how, he is before this Court with this Criminal Appeal.
3. We have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State. We have also perused the records carefully.
4. As we have already narrated, in this case, the prosecution mainly relied on the eye witness account of P.Ws.1 and 2 to prove the guilt of the accused. They have vividly spoken about the entire occurrence. The learned Senior Counsel appearing for the accused would submit that P.Ws.1 and 2 would not have been present at the time of occurrence at all. According to him, had it been true that P.Ws.1 and 2 were present at the time of occurrence, there would not have been such a long delay in making the complaint to the police, though the distance between the place of occurrence and the police station is about 10 - 15 kilometres. He would further submit that there is an inordinate delay in forwarding the First Information Report also. Both the delays have not been explained away. Relying on a judgment of the Hon'ble Supreme Court in Thulia Kali v. State of Tamil Nadu reported in 1972 SCC (Cri) 543, the learned Senior Counsel would submit that the evidences of P.Ws.1 and 2 should be, in toto, rejected.
5. The learned Senior Counsel would next contend that the recovery of M.O.1 allegedly on the confession of the accused is doubtful, because there was no bloodstain on the said weapon. Thus, according to him, the link between the weapon (M.O.1) and the crime has not been established. He would further submit that no independent witnesses have been examined in this case, which also creates doubt in the case of the prosecution.
6. The learned Senior Counsel would, further, submit that it is highly improbable that the accused would have gone all the way with such a long knife to the house of the deceased. The learned Senior Counsel would submit that since P.Ws.1 and 2 are interested witnesses and in view of the other improbabilities, their evidences should be rejected.
7. The learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, the presence of P.Ws.1 and 2 in the place of occurrence is quite natural. Therefore, their presence cannot be doubted. So far as the delay is concerned, P.W.1 has explained that she waited for the arrival of P.W.3 and thereafter, only she went to the Police Station to make a complaint. Thus, according to him, the delay in making the complaint as well as the delay in forwarding the First Information Report to the Court have been properly explained. The learned Additional Public Prosecutor would, further, submit that because there was no other independent witness available, the prosecution could not examine any independent witness. He would further submit that P.Ws.1 and 2 have got no grudge against the accused to falsely implicate him. Thus, according to the learned Additional Public Prosecutor, the evidences of P.Ws.1 and 2, which draws adequate corroboration from the medical evidences, clearly proved the guilt of the accused.
8. We have considered the above submissions.
9. P.W.1 is, after all, the daughter of the deceased. It is true that she has been residing elsewhere and in her evidence, she has stated that she used to frequently visit the house of the deceased. It was in accordance with the said practice on the day of occurrence also, P.W. 1 had gone to the house of the deceased. So far as P.W.2 is concerned, he is the husband of P.W.1 He has also stated that he went to the house of the deceased along with P.W.1. Thus, the presence of P.Ws.1 and 2, in our considered view, so probable and the same is believable. They have vividly stated about the quarrel between the deceased and the accused. They have also stated that at the end of the quarrel, this accused took out a knife and indiscriminately stabbed the deceased. Though these two witnesses have been cross-examined at length, nothing could be elicited to discard them. But the learned Senior Counsel would submit that there was inordinate delay in making the complaint by P.W.1, which would create doubt in the presence of P.W.1. Though attractive, we are not persuaded by the said argument. P.W.1, during cross-examination, has explained that after the occurrence was over, she informed P.W.3 over phone and only after his arrival, she rushed to the Police Station.
In our considered view, in a situation of this nature, where suddenly, her mother has been killed by her close relative, she would have been in a precarious mood and, therefore, she would not have been recovered from such a situation. Quite naturally, it would take some time for her to relax. That is how, she has gone to the Police Station at 06.00 p.m. and made the complaint traveling a distance of about 15-20 kilometres. Thus, absolutely, there is no delay. The First Information Report, which was registered at 06.00 p.m., had reached the office of the learned Magistrate at 08.00 p.m., on the same day. Thus, there is no delay in forwarding the First Information Report to the Court also. Though the learned Senior Counsel tried to make out a case that there was inordinate delay and the same has not been explained by the prosecution, we find no force at all in the said argument. We are satisfied that there was no delay in making the complaint and also in forwarding the First Information Report to the Court.
10. The learned Senior Counsel would submit that there was no independent witness examined. It is in evidence that there was no independent witness available. Probably, since the children were young, they have not been examined. The non-examination of the children available in the house would not in any manner create doubt in the evidences of P.Ws.1 and 2. Further, there was no other witness available at the place of occurrence.
11. The learned Senior Counsel would submit that there was no bloodstain in the weapon allegedly recovered from the accused. It may be true. But, it is not known whether before hiding the weapon, the accused washed it or not. But the fact remains that the said weapon was recovered from the production of the accused on the confession statement made by him. Further, the said weapon was identified by P.Ws.1 and 2. Thus, the recovery of M.O.1 would also lend further assurance to the case of prosecution.
12. The contention of the learned Senior Counsel that it is quite improbable that the accused would have carried such a long size weapon to the house of the deceased also deserves to be rejected, because it is in evidence that the accused was hiding the same in his waist. Thus, we do not find any reason to reject the evidence of P.Ws. 1 and 2, which also draws corroboration from the medical evidence.
13. From the foregoing discussion, it is crystal clear that the accused caused number of injuries on the body of the deceased and caused her death.
14. Having come to the said conclusion now, we have to examine as to what was the offence that was committed by the accused by the said act. As we have already pointed out, the accused had no motive against the deceased. He came to the house of the deceased with an intention to talk about the dispute between P.W.3 and the daughter of the accused. Since P.W.3 was not there, this resulted in a quarrel. It is also in evidence that only at the end of the quarrel, the accused took out a knife and stabbed the deceased. Going by the natural human conduct, it is inferable that in the said quarrel, the deceased should have provoked the accused. Having lost his mental balance, the accused had taken out the knife and stabbed the deceased. Thus, in our considered view, the provocation made by the deceased must be grave and sudden. But, for the loss of self-control, on account of the said grave and sudden provocation, the accused would not have stabbed the deceased at all. Thus, though the act of the accused would squarely fall within the third limb of Section 300 of the Indian Penal Code, the same would fall within the first exception to Section 300 of the Indian Penal Code. Therefore, he is liable to be punished for the offence punishable under Section 304(i) of the Indian Penal Code.
15. Now, turning to the quantum of punishment, the accused is an old man, aged 70 years. It is reported that he is already ailing. He has been in jail for a long time. He has got no bad antecedent. The occurrence took place on 11.11.2010. It was out of a sudden quarrel. After the occurrence also, the accused has not committed any other crime. Having regard to these aggravating as well as the mitigating circumstances, more particularly, the age of the accused, we are of the view that sentencing the accused to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- would meet the ends of justice.
16. In the result, the appeal is partly allowed. The conviction and sentence imposed on the appellant/accused is, hereby, set aside and instead, he has been convicted for the offence punishable under Section 304(i) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for four weeks. It is further directed that the period of sentence already undergone by the appellant/accused shall be set off under Section 428 of the Code of Criminal Procedure. Excess fine amount, if any, shall be refunded to the appellant/accused. Consequently, the connected miscellaneous petitions are closed.