IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 06/07/2005
Coram
The Hon'ble Mr.Justice M.KARPAGAVINAYAGAM
and
The Hon'ble Mr.Justice S.SARDAR ZACKRIA HUSSAIN
CRL.A. No.150 of 1998
and CRL.A. 969 of 1998
C.A.No.150/1998
1. Ayyanar
2. Allimuthu ..Appellants
-Vs-
State of Tamilnadu, Rep.by
The Inspector of Police,
Mecherry Police Station
Crime No.525/93) ..Respondent
C.A.No.969/1998:
State by Public Prosecutor,
Madras. ..Appellant
-Vs-
#1. Ayyanar
2. Allimuthu ..Respondents
Criminal Appeals against the judgment dated 18.2.1998 made in S.C.
No.60 of 1997 on the file of the III Additional Sessions Judge, Salem.
C.A.No.150/1998
!For Appellant-1 : Mr.B.Sriramulu, S.C. for
Mr.N.A.Ravindran
For Appellant-2 : Mr.S.Shanmugavelayutham
^For Respondent : Mr. E. Raja, Addl. P.P.
:COMMON JUDGMENT
M.KARPAGAVINAYAGAM, J.
Ayyanar (A1) and Allimuthu (A2) were tried for the offences under
Sections 341 and 302 read with 34 I.P.C. The trial Court, ultimately,
convicted both the accused finding them guilty in respect of the offence under
Section 341 I.P.C. and acquitted them in respect of the offence under Section
302 read with 34 I.P.C. However, A1 alone was convicted for the offence under
Section 304 Part I I.P.C. Challenging the above conviction, both the accused
have filed appeal in C.A.No.150 of 1998 before this Court. The State, on
being aggrieved by the acquittal of both the accused in respect of the offence
under Section 302 read with 34 I.P.C., has filed appeal before this Court in
C.A.No.96 9 of 1998.
2. The factual scenario, according to the prosecution, is as follows:
“(a) Ayyanar, the first accused married one Poongodi, who is the
daughter of Allimuthu, the second accused. The deceased Kannan is the son of
P.W.2 Natesan who is the co-brother of A2 Allimuthu. Both the families are
staying in the same village.
(b) Before the marriage, Poongodi and Kannan studied in the same
school. At that time itself, they developed illicit intimacy. Even after the
marriage of Poongodi, this illicit relationship continued. Both were warned
by both the families, but they did not heed to their advice.
(c) On 11.7.1993, Ayyanar (A1) went to his petty shop and came back
home in the evening. To his shock, he found in the house that his wife
Poongodi and deceased Kannan were in the bed in a compromising position.
Having felt pained, the first accused Ayyanar went to the bus stand and
thereafter to his garden.
(d) Next day, i.e. on 12.7.1993 at about 10.00 a.m., Ayyanar (A1)
came back to his house from his garden. At that time, Poongodi, his wife was
found writing something in a note book. A1 took the note book and found that
she was writing a letter to her paramour Kannan asking him to take her with
him so that both could elope. Then, the first accused with the note book went
to the house of his father-in-law ( A2) and complained to him. Then, both the
accused decided to do away with the said Kannan. Thereupon, A1 came to his
house and took a Soori knife. Both of them joined together and proceeded
towards the house of Kannan through Mecherry Bazaar.
(e) At about 1.30 p.m., the deceased Kannan was found coming in a
bicycle on the road in front of Sub Registrar’s office. Then, Ayyanar and
Allimuthu (A1 and A2) restrained him from proceeding further by hitting his
bicycle. The deceased Kannan fell down from the cycle. When he got up, A2
Allimuthu caught hold of the deceased Kannan from behind and A1 Ayyanar
stabbed the deceased with Soori knife on the abdomen. Then, the crowd
gathered there. This was witnessed by P.W.2, the father of the said Kannan
and two other witnesses, viz., P.W.3 Vaithi and P.W.4 Elayaperumal.
Thereupon, both the accused escaped from the scene.
(f) On noticing that the deceased was with severe injuries on the
stomach gasping for life, P.W.2 Natesan, his father took him to the Government
Hospital at Mecherry and then on the advice given there, he took him to
Gokulam Hospital and thereafter, he took him to another private hospital where
he was declared dead. Thereupon, the dead body was taken back and brought to
the Mecherry Police Station.
(g) On getting the information that the deceased died, the first
accused went to P.W.1, the Village Administrative Officer, and made an
extra-judicial confession, narrating the incident which had taken place in
which the deceased died. Then, P.W.1 V.A.O. reduced the same into writing
and then took him to the police station and handed over the accused with the
knife and the extra-judicial confession EX.P1 to P.W.10 Sub Inspector of
Police. The case was registered against both A1 and A2 for the offence under
Section 302 I.P.C.
(h) P.W.13, the Inspector of Police received the message. He took up
the investigation, went to the scene of occurrence and prepared observation
mahazar and rough sketch. He seized M.O.2 cycle from the scene of occurrence.
He then conducted inquest and examined P.W.2, P. W.3 and others. Then, from
the police station, the body was sent for post-mortem.
(i) P.W.5 Doctor Balalakshmi conducted post-mortem on 13.7.1995 at
about 10.20 a.m. and found the injury on the stomach. She issued the
post-mortem certificate Ex.P3 giving opinion that the deceased would appear to
have died of shock and haemorrhage due to stab injury into the abdomen.
(j) In the meantime, from A1, the knife was recovered at the police
station and he was remanded to judicial custody.
(k) Next day, P.W.13 recovered Ex.P10 note book, written by Poongodi
from P.W.6, the wife of A2. He also arranged to send M.O.1 Soori knife, M.O.3
shirt and M.O.4 lungi recovered from the accused for chemical analysis. A2
was also arrested on the same day.
(l) P.W.14, another Inspector of Police took up further investigation and
examined other witnesses and recovered M.O.6 motorcycle from the house of A2.
(m) P.W.15, the Inspector of Police sent the note book for comparison of
handwriting of Poongodi to the Expert. After obtaining the Chemical
Examiner’s report and the Handwriting Experts report, he filed the charge
sheet against both the accused under Section 302 read with 34 I.P.C.
3. During the trial, P.Ws.1 to 15 were examined, Exs.P1 to P19 were filed and
M.Os.1 to 6 were marked.
4. When the accused were questioned under Section 313 Cr.P.C., they denied
their complicity in the crime. On their behalf, Ex.D1 was marked. Both of
them filed their respective written statements.
5. The plea of A1 is that A1 suspected the continuance of illegal
relationship between Poongodi and Kannan and therefore, she was warned and on
knowing this, on the day of occurrence, the deceased Kannan came to the house
of A1 and picked up quarrel with him questioning his conduct of abusing
Poongodi and during the course of quarrel, the deceased Kannan took out Soori
knife and attempted to cause a stab on A1 and during the course of the same,
A1 had managed to snatch the knife from the deceased and by way of
self-defence, he stabbed the deceased Kannan and thereafter, he went to the
police station, surrendered himself and gave a statement.
6. According to A2, though there was a misunderstanding between Kannan and A1
with regard to the illicit relationship, A2 did not accompany A1 to the place
of scene and participate in the occurrence.
7. On considering the materials placed by the parties, the trial Court though
believed the case of prosecution as far as A1 is concerned, acquitted both A1
and A2 in respect of the offence under Section 302 read with 34 I.P.C. and
convicted A1 alone for the offence under Section 304 Part I I.P.C. The trial
Court further found both the accused guilty of the offence under Section 341
I.P.C. and convicted them thereunder.
8. As indicated above, having aggrieved over the conviction for the offence
under Section 341 against both the accused and conviction imposed upon A1 for
the offence under Section 304 Part I I.P.C., both the accused filed a single
appeal in C.A.No.150 of 1998. The State through Public Prosecutor, aggrieved
by the acquittal of both the accused in respect of the offence under Section
302 read with 34 I.P.C., filed an appeal in C.A.No.969 of 1998, on the ground
that exception would not apply and so conviction for lesser offence is not
legal.
9. Mr.B.Sriramulu, the learned Senior Counsel appearing for A1 Ayyanar, would
take us through the entire evidence and contend that there are various
infirmities in the evidence of the eye witnesses P.W.2 and P.W.4, especially
when both of them are chance witnesses and at any rate, P.W.4 could not have
been present in the place of occurrence and purposely, the police put him as
an eye witness in the charge sheet, even though he was examined after 10 days.
The learned Senior Counsel would further contend that the failure on the part
of both P.Ws.2 and 4 to report about the matter immediately to the police
station which is situated nearby the place of occurrence would make their
evidence doubtful and the extra-judicial confession given by A1 to V.A.O.,
P.W.1, cannot be given due credence in the light of the fact that V.A.O. has
not chosen to follow the procedure to record the extrajudicial confession and
as such, the entire case of the prosecution would bristle with several
suspicious features. While opposing the appeal against acquittal filed by the
State, he would contend that even assuming that the prosecution case is true,
the conclusion arrived at by the trial Court that the first accused is liable
to be convicted only for the lesser offence, namely, Section 304 Part-I I.P.C.
is preferably valid, as there are materials to show that the occurrence took
place in a sudden, grave and sustained provocation and the accused had caused
only a single stab.
10. Mr.S.Shanmugavelayutham, the counsel for A2 Allimuthu, would contend that
Ex.P1, the extra-judicial confession, given by A1 to V.A.O., P.W.1,
implicating A2, cannot at all be taken into consideration and, if at all, it
could be used only against A1 and not against A2. He would also point out the
variation found in the deposition of the witnesses, P.Ws.2 and 4 with
reference to the part played by A2. According to the learned counsel, A2 is
liable to be acquitted in entirety.
11. Mr.E.Raja, learned Additional Public Prosecutor, while elaborating the
reasonings for accepting the prosecution case, would contend that the trial
Court having held that the prosecution case is true, ought not to have
acquitted A1 and A2 in respect of the offence under Section 302 read with 34
I.P.C. as there are no materials to show that the occurrence took place in a
sudden and grave provocation so as to invoke Exception 1 to Section 300 I.P.C.
In brief, the submission made by the learned Additional Public Prosecutor is
that the judgment of acquittal in respect of the offence under Section 302
read with 34 I.P.C. has to be set aside and both the accused must be
convicted for the offence under Section 302 read with 34 I.P.C.
12. The counsel for the parties would cite various authorities to
substantiate their respective pleas.
13. We have heard the counsel for the parties and given our careful
consideration to the rival contentions.
14. According to the prosecution, Ayyanar (A1), husband of Poongodi, on
noticing his wife writing a letter in a note book asking Kannan, her paramour,
the deceased, to take her out of the house so that they could elope, took the
note book to his father-in-law (A2) and showed the same and thereafter, they
decided to do away with Kannan, the deceased and then, the first accused
Ayyanar went to his house and took Soori knife and both of them proceeded to
the house of the deceased Kannan and on the way, they found Kannan coming in a
bicycle and both of them waylaid him and while A2 Allimuthu caught hold of
him, A1 Ayyanar stabbed him with the knife and caused his death and hence both
of them are liable to be convicted for murder.
15. Before dealing with the evidence relating to the part played by A1, who
attacked the deceased and caused his death, it would be appropriate to
consider the role played by A2, the father- in-law of A1, in the light of the
submissions made by Mr.Shanmugavelayutham, the learned counsel for A2.
16. The earliest document in this case is Ex.P1, the extra-judicial
confession, made by A1 to P.W.1. In Ex.P1, the part played by A2 has been
mentioned. According to the extra-judicial confession Ex.P1, made to P.W.1,
both the accused i.e., A1 and A2 waylaid the deceased and while A2 caught hold
of him, A1 stabbed him on the stomach. P.W.2, the father of the deceased, one
of the eye witnesses, would state that both the accused came in different
motorbikes and stopped Kannan from proceeding further in the bicycle by
hitting against it. The deceased Kannan fell down. Then, A2 caught hold of
the hands of the deceased from behind. Thereupon, A1 stabbed on the stomach.
On the contrary, P.W.4 Elayaperumal, another eye witness, would state that the
second accused came near to the deceased and caught hold of his hands from
backside and lifted him and asked A1 to remove the knife which was kept in the
box of his motorcycle and on his instigation, A1 opened the box attached with
the motorcycle, removed the knife and then stabbed on the stomach of the
deceased. The comparison of Ex.P1 with the deposition of P.W.2 and P.W.4
would indicate that there is not only an improved version by the witnesses
stage by stage with reference to the role played by A2 but also there is
inconsistency in regard to the overt act attributed to A2.
17. It is the admitted case of the prosecution that after the occurrence was
over, both the accused left the place and A2 went to the police station and
met the Head Constable Rathinam and talked something with him and thereafter
he left in his motorcycle and A1 straight went to P.W.1, the V.A.O., and made
an extra-judicial confession, implicating himself and A2. This conduct of the
accused 1 and 2, as projected by the prosecution, is quite artificial.
18. If both of them were parties to the occurrence, either both should have
gone together to the police station to surrender or both should have appeared
together before the Village Administrative Officer for making the
extra-judicial confession. It is quite strange to see that A1 went to V.A.O.
separately while A2 alone went to the police station straight. The very fact
that A2 went to the police station and had a mere conversation with Rathinam,
Head Constable, would indicate that he would not have participated in the
occurrence and he wanted to convey some other information to Head Constable
and accordingly he met him and then went away. If both of them were the
parties to the attack on the deceased, there is no necessity for A2 to allow
A1 alone to go to V.A.O. and there is no reason for him to go alone to the
police station.
19. As pointed out by the learned counsel for A2, the extra-judicial
confession Ex.P1 which is inculpatory statement made by A1 to P.W.1
implicating himself and A2 would not be of any evidentiary value as against A2
in the absence of any other acceptable materials against him. In this
context, it is to be remembered that A2 has been acquitted of the major
offence by the trial Court itself. Therefore, we are of the view that the
presence of A2 in the place of occurrence is doubtful and, as such, his
alleged act of wrongful restraint of the deceased along with A1 cannot be said
to be established. Hence, the conviction and sentence imposed upon A2 are
liable to be set aside.
20. We shall now come to the materials as against A1. P.Ws.2 and 4 are the
eye witnesses. P.W.2, the father of the deceased had been examined during the
course of the inquest. P.W.4, even though was not examined during the
inquest, was examined during the course of the investigation when P.W.14, the
successor Police Officer, took up further investigation.
21. Though it is argued that P.Ws.2 and 4 would not have been present during
the course of the occurrence, we are unable to accept the said contention as,
in our view, the evidence of P.W.2 and P.W.4, which is cogent and consistent
with reference to the occurrence, inspires confidence, in the light of the
fact that the evidence of P.W.6 Doctor and the post-mortem certificate Ex.P3
would clearly corroborate their testimony.
22. It has been argued that P.W.2 and P.W.4 had not chosen to report to the
police immediately and as such, their evidence cannot be believed. This is a
case where P.W.2, on seeing his son, the deceased, falling down with injury,
had an anxiety to save his son and arranged to take him to the Government
Hospital and thereupon, on their advice, he took him to various hospitals and
ultimately, the deceased was declared dead and only then he came to the police
station along with the dead body to report about the matter. There, he came
to know that in the meantime a case was registered and accused were arrested.
Under those circumstances, it cannot be said that failure on the part of P.W.2
to report to the police station immediately after the occurrence would be a
ground to disbelieve his evidence.
23. Similarly, merely because there was some delay in examination of P.W.4,
it cannot be said that the prosecution version becomes doubtful. It cannot be
laid down as a rule of universal application that if there is any delay in
examination of particular witness, his evidence shall be looked upon with
suspicion. As observed in 2003 SUPREME COURT CASES (CRI.) 201 (BODHRAJ ALIAS
BODHA AND OTHERS v. STATE OF JUMMU AND KASHMIR), the investigating officer
has to be specifically asked as to the reasons for the delayed examination of
the said witness. In the instant case, no questions were put to the
investigating officer. A reading of the deposition of P.W.4 as a whole would
clearly indicate that he also was present near the place of occurrence when
the occurrence had taken place and thereafter, A1 was in the police station
and a lot of crowd gathered in front of the police station compelling the
police to arrest A2 also. In such circumstances, it cannot be stated that his
non-complaining to police, especially when the police have already taken
action against A1, would create any suspicion with reference to his presence
at the time of occurrence.
24. The evidence of both P.W.2 and P.W.4 is not only corroborated by the
medical evidence, but also by the fact that the weapon recovered from the
accused contained the blood group ‘O’ which tallied with the blood group of
the deceased, as referred to in the report Ex.P7.
25. Further, the motive part also has been clearly established through the
materials, such as the evidence of P.W.2; Ex.P1, the extrajudicial confession
made by A1 to P.W.1 and Ex.P12, the note book recovered from the house of A2.
The report of the Handwriting Expert Ex.P19 would clearly indicate that the
letter in Ex.P12 note book requesting the deceased Kannan to take her out of
the house to avoid further torture from the first accused and to settle
somewhere else was found to be in the handwriting of A1’s wife Poongodi. That
apart, both A1 and A2 themselves in their written statements would clearly
state that there was an illicit relationship between the deceased Kannan and
Poongodi and consequently, there was an ill-will and enmity for the accused
against the deceased.
26. Under those circumstances, we are of the view that the prosecution has
established the fact that the deceased and the wife of A1 continued their
illegal relationship and so the deceased was done to death at the hands of the
first accused and, as such, the conclusion arrived at by the trial Court with
reference to the part played by A1 is perfectly justified.
27. The next question that arises for consideration is as to whether the plea
of private defence, which is one of the limbs of arguments advanced by the
learned Senior counsel for the first accused on the strength of the written
statement filed by A1 at the stage of Section 3 13 Cr.P.C. questioning, can
be accepted?
28. At the outset, this plea of private defence has to be rejected for the
simple reason that nothing has been culled out from any one of the witnesses
with reference to this plea and nothing was suggested relating to this plea to
any one of the witnesses during the crossexamination.
29. The plea of the accused in the written statement is that the occurrence
had taken place inside the house of A1, when Kannan voluntarily came and
picked up quarrel. This plea has no basis. On the other hand, the cycle, in
which the deceased was proceeding on the road near to the Sub Registrar’s
office, was recovered from the scene. It is not disputed that the cycle
belonged to the deceased.
30. The mere fact that no bloodstained earth was taken from the scene would
not be a ground to hold that the occurrence had not taken place in the said
place, especially when P.W.2 would clearly explain in the cross-examination by
stating that when the blood was coming out of the stomach, P.W.2 and others
put cotton on the wound and prevented the bleeding. Therefore, there is no
difficulty in accepting the case of the prosecution that the occurrence had
taken place only in the scene near the Sub Registrar’s office and not in the
house of A1 and, as such, the plea of private defence has to be rejected in
toto.
31. The alternative argument advanced by the learned Senior Counsel appearing
for the first accused, by way of reply to the Additional Public Prosecutor in
the appeal against acquittal, is that at any rate, the conclusion arrived at
by the trial Court that the offence is not a murder and only culpable homicide
not amounting to murder as the occurrence had taken place in a sudden and
grave provocation is perfectly valid. He would elaborate the said argument by
stating that there are materials not only to show that there was sudden and
grave provocation but also that the incident was on account of sustained
provocation and, as such, Exception 1 to Section 300 I.P.C. will apply to the
facts of the case and consequently, the conviction for the offence under
Section 304 Part-I I.P.C. imposed by the trial Court may be sustained and the
appeal by the State may be dismissed. He also cited 19 88 L.W.(CRL.) 113
(CHANDRAN, IN RE) and an unreported judgment of this Court in C.A.No.64 of
1991, dated 10.10.2000, to substantiate his submissions.
32. Let us now deal with the contention urged by the learned Senior Counsel
appearing for A-1, relating to sudden and grave provocation on account of
sustained provocation, in order to bring it under Exception 1 to Section 300
I.P.C.
33. As per Exception 1 to Section 300 I.P.C., culpable homicide is not
murder, if the offender, whilst deprived of the power of selfcontrol by grave
and sudden provocation, causes the death of the person who gave the
provocation or causes the death of any other person by mistake or accident.
In order to bring the case under Exception 1 to Section 300 I.P.C., it is
necessary that the following facts should be established :
(1) The offender must have done the act whilst deprived of the power of
self-control;
(2) He must have been so deprived by reason of the provocation;
(3) The provocation must have been grave and sudden;
(4) The provocation must not have been sought for by the offender;
(5) It must not have been voluntarily provoked by the offender as an excuse
for killing or doing harm to any person.
34. It is common knowledge that the term “self-control” in the said
provision is a subjective phenomenon and it can be inferred from the
surrounding circumstances of a given case. Therefore, in order to find out
whether the last act of provocation upon which the offender caused the death
was sufficiently grave as to deprive him of the power of self-control, we have
to take into consideration the previous act of provocation, caused by the
deceased person.
35. While interpreting the words “grave provocation” and “sustained
provocation”, a Division Bench of this Court has rendered a decision in
Suyambukkani v. State (1989 L.W.(Crl.86), holding that though there is a
difference between provocation as defined under Exception 1 and sustained
provocation, the ingredient of sustained provocation is a series of acts more
or less grave spread over a certain period of time, the last of which acting
as the last straw breaking the camel’s back may even be a very trifling one
and, as such, the sustained provocation also is an addition to the ingredient
of grave and sudden provocation, contemplated under Exception 1 to Section 300
I.P.C.
36. The Courts, through the decisions in A.I.R.1962 S.C. 605 (K.M. NANAVATI
v. STATE OF MAHARASHTRA); I.L.R.2 MADRAS 122 (THE EMPRESS v. KHAGAYI);
I.L.R.3 MADRAS 33 (BOYA MUNIGADU v. THE QUEEN); A.I.R.1957 MADRAS 541
(MURUGIEN, IN RE); A.I.R.1958 ANDHRA 235 (CHERVIRALA NARAYAN, IN RE);
A.I.R.1938 ALLAHABAD 532 (BALKU v. EMPEROR); A.I.R.1960 ALLAHABAD 223 (BABU
LAL v. STATE) and 1989 LAW WEEKLY (CRI.) 86 ( SUYAMBUKKANI v. STATE OF TAMIL
NADU), have added one more exception, known as ‘sustained provocation’.
Admittedly, the word ‘sustained provocation’ is not available in Exception 1
to Section 300 I.P.C. With these decisions, attempts have been made to bring
sustained provocation under Exception 1 to Section 300 I.P.C.
37. There is a cardinal difference between provocation as defined under
Exception 1 to Section 300 and sustained provocation. The only word which is
common is ‘provocation’. What Exception 1 contemplates is, a grave and sudden
provocation, whereas the ingredient of sustained provocation is a series of
acts more or less grave spread over a certain period of time, the last of
which acting as the last straw breaking the camel’s back. The last incident
may even be a trifling one. Therefore, while considering whether there are
materials to indicate that there is a grave and sudden provocation as
contemplated under Exception 1 to Section 300 I.P.C., the sustained
provocation, on account of a series of acts more or less grave spread over a
certain period of time, would be undoubtedly considered as an addition to
Exception 1 to Section 300 I.P.C.
38. While considering Exception 1 to Section 300 I.P.C., the Courts have to
analyse the materials in order to find out whether the provocation was sudden
and grave. It means, if the provocation is not grave or not more serious in
nature, it will not come under Exception 1 to Section 300 I.P.C. But, for
this proposition, there is some exception with reference to the applicability
of sustained provocation. In other words, if the accused has been nurturing
ill-will for a long period because of the conduct of the deceased, even in the
long period, due to the series of acts, the last act which provoked the
accused to attack the deceased on the spur of the moment might be a trifling
one. Also, while considering the exception in relation to sudden and grave
provocation, the Court has to consider not only the last incident, which is a
trifling one, but also the series of incidents which took place earlier, due
to which the accused was nurturing ill-will against the deceased.
39. Bearing these principles in mind, we have to analyse the prosecution case
to find out whether the case of the accused would come under the first
exception to Section 300 I.P.C.
40. According to the prosecution, the first accused on 11.7.1993 evening,
when he came back home, found his wife Poongodi and the deceased in a
compromising position. At that time, he did not react. He went to the bus
stand and thereafter, went to his garden. Next day morning, he came at 10.00
a.m. At that point of time, he found that Poongodi, his wife, writing
something in a note book. He snatched the note book from her and found out
that she was writing a letter to the said Kannan, the deceased, asking him to
take her along with him so that they could elope. At that time also, he did
not react. On the other hand, he went and met A2, his father-in-law, and
showed the note book to him. Thus, the incident that took place in the
earlier day evening, when he found both his wife and the deceased in
compromising position, and the incident on the next day morning, wherein he
found his wife writing a letter to her paramour, did not give rise to any
provocation, which is sudden and grave. Conversely, he went to A2’s house and
complained to him and thereupon, he took a decision, came home, took the knife
with him and proceeded towards the house of Kannan for the purpose of causing
his death. On noticing Kannan coming in a cycle in the opposite direction, he
waylaid him and attacked him with the knife by inflicting injury on the
stomach.
41. In this case, if at all there is a chance for sudden and grave
provocation for the first accused to get provoked and to do harm to the life
of the deceased, it must be only when he saw the deceased in a compromising
position with Poongodi, his wife. At that time, he had no provocation. Next
day, he came and saw his wife writing letter in a note book to the deceased
asking him to co me and take her. At that time also, there was no
provocation. If at all there was any sudden and grave provocation for the
first accused, it must be at that moment only by attacking the said Poongodi.
But, that is not the case here. On the other hand, he went to the house of A2
and after a deliberation, he came home and took the knife and thereafter,
proceeded to the house of Kannan with a design to kill him and on seeing him
coming in the opposite direction, attacked him and caused his death. So,
there is neither sudden and grave provocation nor anything happened at the
time of the incident at the instance of the deceased so as to provoke him
further to attack the deceased out of sustained provocation.
42. Both the decisions cited by the learned Senior Counsel for the first
appellant would refer to various incidents in which the accused was nurturing
the ill-will against the deceased and also the provocative words used by the
deceased against the accused in the last incident, due to which the accused
got provoked and committed the act. These decisions would not apply to the
present case.
43. Lastly, it is argued that it was a single stab on a non-vital part and
therefore, it would attract the lesser offence, on the strength of the
decision in K.RAMAKRISHNAN UNNITHAN v. STATE OF KERALA (A. I.R.1999
S.C.1428).
44. This submission also, in our view, lacks substance. According to the
prosecution, the first accused came to the place of occurrence with a
pre-concerted plan to attack the deceased and cause his death. P.W.5, the
Doctor has given evidence that the injury is sufficient to cause the death in
the ordinary course of nature. In Ex.P3, the opinion has been given that the
deceased would appear to have died of shock and haemorrhage due to stab injury
into the abdomen.
45. It is true, as admitted by P.W.5 Doctor, that stomach is a nonvital part.
But, the fact remains that it has caused a very serious injury on a vital part
inside the body. The details are as follows:
“A stab wound 2.5 cm x 1.5. cm extending into the peritoneal cavity 5 cm
above the umbilicus in the midline towards right to left, above downwards. ()
edges clear cut. Internal Exam: On opening the wound 10 cm x 6 cm x 2.5 cm
haematoma seen in the mesocolon. Mesenteric vessels seen cut.”
46. The above particulars would indicate that the stab caused a very deep
injury into the arteries. These things would make it clear that the first
accused must be attributed with the knowledge that when he used M.O.1 Soori
knife measuring about 38.5 cm, as found in Ex.P4, Mahazar, and forcefully
stabbed on the stomach portion, he knew that it would cause death of the said
person. Thus, the intention to kill is so explicit. The intention to cause
death has to be inferred from various factors such as the nature of the
weapon, nature of the injury, the part of the body on which the injury was
inflicted, the force with which the weapon has been employed, the motive and
other circumstances.
47. This is a case where the first accused went to his home and took the
lengthy knife with a plan to kill the deceased and proceeded towards his house
and when the deceased was coming in a bicycle near the Sub Registrar’s Office,
he gave a heavy stab on the stomach which cut the mesenteric vessels. This
definitely indicates the intention of the first accused to use the knife and
cause serious injury cutting the mesenteric vessels in order to murder the
deceased.
48. When there is no material whatsoever for coming to the conclusion that
the incident took place in a sudden and grave provocation or sustained
provocation, in the absence of any incident causing further provocation to
attack the deceased, the trial Court, in our view, ought not to have acquitted
the first accused in respect of the major offence under Section 302 I.P.C.
and simply convicted him for the lesser offence.
49. While dealing with the appeal against acquittal, the following guidelines
have to be borne in mind, as laid down by the Supreme Court :
(A) There is no embargo on the appellate court reviewing the evidence upon
which an order of acquittal in respect of the offence under Section 302 I.P.C.
is based.
(B) If two views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to his innocence, the view
which is favourable to the accused should be adopted.
(C) The paramount consideration of the court is to ensure that miscarriage of
justice is prevented.
(D) In a case where admissible evidence is ignored, a duty is cast upon the
appellate court to reappreciate the evidence even where the accused has been
acquitted, for the purpose of ascertaining as to whether the accused committed
the offence or not.
50. The above principles have been laid down by the Supreme Court in STATE OF
U.P. v. BABU (2004 S.C.C.(Cri) 144), STATE OF PUNJAB v. KARNAIL SINGH (2004
S.C.C.(Cri) 135) and BHAGWAN SINGH v. STATE OF M.P.( 2002(4) S.C.C.85).
51. In this case, the trial Court has not only considered the
admissible evidence, but also accepted the evidence and even then, it had
acquitted the first accused in respect of the major offence, namely, murder,
by ignoring the principles for converting the case of murder into a lesser
offence. Therefore, the conviction and sentence imposed upon the first
accused under Section 304 Part-I I.P.C. are set aside and instead, he is
convicted for the offence under Section 302 I.P.C. and sentenced to undergo
life imprisonment.
52. Sum up:
(i) The conviction and sentence imposed upon A2 for the offence under
Section 341 I.P.C. are set aside and he is acquitted of that charge also.
(ii) The conviction and sentence imposed upon A1 under Section 304
Part-I I.P.C. are set aside and instead, he is convicted for the offence
under Section 302 I.P.C. and sentenced to undergo imprisonment for life.
(iii) The conviction and sentence imposed upon A1 under Section 341
I.P.C. by the trial Court stand confirmed.
(iv) The trial Court is directed to take steps to secure the custody
of the first accused to undergo the remaining period of sentence.
(v) Criminal Appeal No.150 of 1998 is partly allowed and Criminal
Appeal No.969 of 1998 is allowed.
Index: Yes
Internet : Yes
mam
To
1) The III Additional Sessions Judge, Salem.
2) -do through the Prl. Sessions Judge, Salem.
3) The Judicial Magistrate No.II, Mettur, Salem District.
4) -do- through the Chief Judicial Magistrate, Salem.
5) The Superintendent, Central Prison, Coimbatore.
6) The District Collector, Salem.
7) The Director General of Police, Chennai.
8) The Public Prosecutor, High Court, Madras.
9) The Inspector of Police, Mecherry Police Station, Salem.