JUDGMENT
M. Karpagavinayagam, J.
1. In Sessions Case No. 82 of 1988, on the file of the Sessions Court, Coimbatore, the appellant Subramaniam was tried and convicted for the offence under Section 302 of Indian Penal Code, on the allegation that on 13-11-1987 at 11.30 a.m. in front of Screen Tex Company situate at Kumaranandapuram stabbed his wife Baby on her stomach and the back which resulted in her death.
2. To substantiate the above charge, the prosecution examined P.Ws. 1 to 12, and Exs. P1 to P14 were marked. M.Os. 1 to 7 were also marked. Ex. R-1 was marked on the side of the defence.
3. The facts of the prosecution case in brief are as follows :- The deceased Baby is the wife of the appellant Subramaniam. P.W. 6 Duraisami Achari is the father of the deceased. Four years ago the appellant and the deceased got married. P.W. 6 Duraisami belongs to the village Kolathupalayam near Chennimalai. P.W. 1 Vijaya is his another daughter who is staying along with her husband in Angeripalayam at Tirupur.
4. After the marriage the appellant Subramanim and the deceased Baby were living together in the village of the appellant, Somanur, who was working as a coolie. He was a weaver by profession. He was working as a coolie in a power-loom factory. For one year he worked there and thereafter he became drunkard and used to always quarrel with his wife, the deceased Baby. He did not go for work regularly. So, having developed misunderstanding with her husband, the deceased Baby used to come out of the house of the appellant and she stayed with her parents at Kolathupalayam. However, the appellant used to come to Kolathupalayam and requested P.W. 6 and his wife to send their daughter, the deceased, along with him, stating that he would regularly go for work in future and look after the deceased carefully. On that basis, P.W. 6 and his wife used to pacify and convince the deceased Baby and send her to the village of the appellant.
5. A month prior to the date of occurrence, the deceased Baby came to the village of P.W. 6, since the appellant did not reform himself. One week prior to the occurrence, the appellant Subramaniam came to the house of P.W. 1, the elder sister of the deceased and requested P.W. 1 and her husband to make arrangements for sending the deceased along with the accused. In compliance with his request, and in order to convince the parents of the deceased, P.W. 1, the appellant Subramaniam, and the husband of P.W. 1, Viswanathan, all went to the house of P.W. 2. On consideration of the request made by the appellant and the husband of P.W. 1, the parents of the deceased again sent back their daughter, the deceased, along with the appellant. Then P.W. 1 along with her husband, the deceased, and the appellant came to their town Tirupur, and the appellant and the deceased were staying in Tirupur in the house of P.W. 1 for two days. In the meantime P.W. 1 who is already working in a screen test factory, arranged to get a job for the deceased also. The appellant who was staying along with P.W. 1 in her house also tried for a job at Tirupur.
6. The fateful day fell on 13-11-1987. On that day, P.W. 1 and the deceased Baby went for work at 7.00 a.m. P.W. 2 one Natarajan of Tirupur also happened to come to the factory in order to see the proprietor Mr. Rajamanickam, of the Company. At about 11.00 a.m. the proprietor Rajamanickam requested P.W. 2 Natarajan to look after the factory for some hours and that he would come back after finishing some work outside. At that time P.W. 3 Selvi, the relation of P.W. 1, P.W. 4 Rengaswami, P.W. 5 Anandhan, along with others were working in the factory.
7. At about 11.30 a.m. the appellant Subramaniam came inside the factory in order to ask the deceased Baby to come along with him to go to his village. At that time, when P.W. 2 was inside the office attached to the factory, and the appellant came and informed him that he wanted to see his wife, the deceased. So, P.W. 2 permitted him to see and talk to the deceased, who was working inside the factory. Appellant went inside. They were talking for about five minutes. The appellant asked the deceased to come along with him so that both could go to his village straightway. But the deceased, Baby replied saying that she may not be able to come suddenly, without getting permission from the proprietor. There was a wordy quarrel on hearing the noise, P.W. 2 asked the accused/appellant not to shout inside the factory and that if he wants to have a quarrel with his wife, he could go outside and shout. Then the appellant asked the deceased Baby, But when she was not inclined to go along with the appellant, then the appellant suddenly caught hold of her tuft and dragged her from the factory and brought her outside. Then P.W. 2 and other witnesses on seeing that, shouted and came outside, objecting to the act of the appellant. At that point of time, the appellant suddenly took out a knife which was kept in his pocket and unfolded the same and stabbed on the abdomen of the deceased. However, the deceased tried to ward off the knife by her hand. But the knife caused a slight injury on the stomach. Having realised that the first stab on the stomach did not cause a deep injury, again caught hold of the tuft and gave a forcible stab on the back. On seeing the horrible sight, all the witnesses tried to catch the appellant, but the appellant with the knife ran away towards the northern side. On receipt of the injuries, the deceased fell down on the floor. P.W. 1 gave water to the deceased, but the deceased was unable to swallow the water.
8. P.W. 2 immediately took a cycle and went to a private doctor, who was having a clinic nearby. However, the doctor said that he could not come since it was a police case, and that he advised him to take the deceased to the Government Hospital. So, he came back to the scene. In the meantime, the deceased died. P.W. 4 Rengasami, and P.W. 5 who were the workers in the factory went outside and brought an auto. Immediately thereafter P.W. 1 and P.W. 2 went to the police station at Tirupur.
9. P.W. 10 Mothilal, the Sub-Inspector of Police at 12.30 p.m. received the complaint, Ex. P. 1, recorded the statement from P.W. 1, which was reduced to writing and the signature was obtained therein. At about 1.00 p.m. P.W. 10 registered the case in Crime No. 1339 of 1987 for the offence under S. 302, I.P.C. Ex. P-10 is the printed First Information Report. Then he despatched both Exs. P-1 and P-10 to the Court as well as to the superior officers. At 1.45 p.m. he sent message to the Inspector of Police, P.W. 11. On receipt of the message P.W. 11 came to the station and received the F.I.R. copy and took up further investigation. At 2.30 p.m. he went to the spot and prepared Ex. P. 11 observation mahazar, and Ex. P. 12 rough sketch. He held inquest between 3.30 and 7.00 p.m. on the dead body of the deceased Baby and examined P.Ws. 1 to 4 and one Subramaniam. Ex. P. 13 is the inquest report. After the inquest was over, he handed over the dead body to P.W. 8 constable along with the requisition Ex. P. 2 to be handed over to the doctor for conducting post-mortem. At 7.00 p.m. P.W. 11 the Inspector of Police recovered M.O. 6 blood-stained earth, M.O. 7 sample earth and M.O. 1 the blood-stained saree worn by P.W. 1, under Ex. P. 14 mahazar. P.W. 8 the constable came to the government hospital at Tirupur and entrusted the dead body to the hospital authorities and handed over Ex. P. 2 the requisition sent by P.W. 11 to P.W. 7. That was received at about 7.25 p.m. on 13-11-1987 by P.W. 7.
10. On 14-11-1987 at about 7.30 a.m. P.W. 7 the doctor commenced post-mortem and found the following injuries :-
“External injuries :- (1) An oblique linear incised wound upper part of the left side of the abdomen measuring 4 cms. x 1/2 c.m. x 1/2 c.m. (2) An oblique penetrating stab injury seen on the back of the lower half of the right side of the chest, 2 cms. away from the vertebral column measuring 4 cms. x 2 cms. penetrating the thorasic cavity in between the 7th and 8th ribs with oozing fluid blood from the wound. The lateral end of the wound pointed. The medial end of the wound slightly curved. The edges of the wound sharp and clean cut.
Internal :- On dissection of the skull there is no fracture of skull bones. Brain 1300 gms. pale. On dissection of the neck, hyoid bone intact. On dissection of the thorax, heart 200 grams. Chambers empty, Lungs : right lung 500 grams, pale. An oblique incised wound on the posterior surface of the lower lobe of the right lung measuring 2 c.m. x 1/2 c.m. x 1/4 c.m. about 60 ml. of fluid blood found in the right thoracic cavity. Left lung 450 gm. pale.
On opening the abdomen :- Stomach containing partly digested food particles. Liver 1500 gms. pale. Each kidney 120 grams. pale. Spleen 100 gm. pale. Bladder empty. Uterus normal. On dissection of the external injury No. 1 subcutaneous congestion and small blood clots found underneath the skin”.
He gave opinion that the deceased would have died of shock and haemorrage as a result of injury to the right lung and that the death would have occurred about 18 to 24 hours prior to the autopsy. He issued postmortem certificate Ex. P. 3.
11. After post-mortem was over, P.W. 8, constable recovered M.O. 2, the blouse, M.O. 3, saree, M.O. 4, petticoat, M.O. 5 bra. and handed over the same in the police station. The body was handed over to the relations of the deceased.
12. P.W. 11, the Inspector of Police, on 17-11-1987 sent the Material Objects along with Ex. P. 4 requisition to the Court for sending the same for the analysis. P.W. 9, the Head Clerk of the court received the M.Os. with the requisition Ex. P. 4 and sent the same for analysis with the covering letter Ex. P. 5, the original. He received report Exs. P. 6, 7, 8 and 9 chemical analysis report and serologist report. In the meantime, P.W. 11 the Inspector of Police between 13-11-1987 to 17-2-1988 took effective steps for apprehending the appellant. But he was not available as he was absconding. Thereafter, he was posted to some other station. P.W. 12 who was his successor took up further investigation on 17-2-1988. He also tried his best to arrest the accused. So, on 11-5-1988, after finishing investigation P.W. 12 filed the chargesheet against the appellant under S. 302, I.P.C. before the committal Court. On 6-7-1988 at about 5.00 a.m., P.W. 12 arrested the appellant and produced before the Magistrate who sent him for remand.
13. On committal the trial Court and Sessions Court framed charges against the appellant for the offence under S. 302, I.P.C. and the appellant pleaded not-guilty and claimed to be tried. After examination of all the witnesses produced by the prosecution, the appellant was questioned under S. 313, Cr.P.C. to explain the incriminating circumstances found against him in the evidence recorded, and the accused denied his complicity in the crime. He further added that a false case has been foisted against him, that he was innocent, that the deceased left from his custody of her own and eloped with one Dhanushkodi, as she had illicit intimacy with him and that he was taken by the police when he was in house, and a false case has been filed against him. However, no defence witness was examined. But Ex. D-1 was marked through P.W. 8, the police constable.
14. On apprisal of the evidence adduced by the prosecution, oral and documentary, the trial Court came to the conclusion that the offence of murder was proved against the appellant beyond doubt and found him guilty and convicted and sentenced the accused/appellant and dealt with as referred to earlier.
15. Aggrieved over this verdict, the appellant has resorted to the filing of this appeal in this Court.
16. Mr. James, learned counsel for the appellant took us through the entire evidence and strenuously contended that the prosecution has failed to prove the case against the appellant/accused as there are various infirmities in the evidence adduced by the eye-witnesses. He also contended that there is no motive for the occurrence, that even according to P.Ws. 1 and 6, both the appellant and the deceased were staying in harmony in the house of P.W. 1, and that among the evidence of P.Ws. 1 to 5, the eye-witnesses, there is a discrepancy over the time of duration of the wordy quarrel that was ensued between the accused/appellant and the deceased in the factory premises. He also contended that P.W. 2 who was not a worker in the factory did not speak anything about the purpose for which he came to the factory, and that even though all the witnesses were present at the time of occurrence, nobody tried to prevent the attack made by the accused on the deceased. It is also his contention that P.Ws. 2, 4 and 5 who were the strangers to the accused, had identified the accused for the first time only in the Court and that there is no identification parade. Ultimately, he contended that, in any event, even assuming that the case was proved against the accused, the offence would fall under S. 304, Part II and not under S. 302, I.P.C., because, the occurrence took place suddenly on a spur of moment, due to the wordy quarrel between the accused and the deceased, and the accused used only pen knife which is not a dangerous one.
16-A. Per contra, Mr. Venkatasubramanian, representing the Public Prosecutor contended that the discrepancies pointed out by the counsel for the petitioner are only minor, that though there is no strong motive for the offence in murder cases, though motive cannot be taken as a strong circumstance, especially when the eye-witnesses speak to the fact of the main occurrence, and that P.Ws. 1 and 3, the relations of the deceased did not have any motive for speaking falsehood against the accused, and that P.Ws. 2, 4 and 5 who were present in the factory are the independent and truthful witnesses, and that they have no axe to grind against the accused. It is also further contended that the failure to hold an identification parade will not be fatal always, and that the Apex Court held in so many occasions that the identification of the person first time in the Court can be taken into consideration along with the other materials adduced by the prosecution. In support of his submissions, Mr. Venkatasubramanian, representing the Public Prosecutor has cited the authorities . He also contended that the materials available on record would show that the offence would fall only under S. 302, I.P.C., and it would not come under S. 304, Part II. The learned counsel for the appellant Mr. James cited the following authorities, namely, .
17. P.W. 1 Vijaya is the sister of the deceased. In order to belp the appellant to see that both the appellant and the deceased live together under one roof, she took her husband Viswanathan along with the appellant to the house of her father where the deceased was staying, for the purpose of convincing her father to send the deceased to go along with the accused. So, only on the pursuasion of P.W. 1, P.W. 6, the father of the deceased permitted the deceased to go along with the accused. From there, P.W. 1 took both the appellant/accused and the deceased to ber house at Tirupur. They were made to stay there for two days. In the meantime she arranged to get a job for the deceased in the factory in which she was working. On her advice, the accused/appellant was trying to get a job. So, the evidence of P.W. 1 would make it clear that in her best intention, she wanted to help both the appellant and the deceased to lead their peaceful life as husband and wife. Such a person like P.W. 1 who helped the appellant, could not be expected to speak falsehood, against the appellant. About the aspect of the evidence, there is the evidence of P.W. 1 which is corroborated by the evidence of P.W. 3, the sister-in-law, who was also working along with P.W. 1 in the factory would show that both P.W. 1 and P.W. 3 are the witnesses of truth. P.W. 2 Natarajan who used to come and visit the factory often, happened to come on the fateful day on 13-11-1987 at 9.00 a.m. He also has stated that he is working at the relevant period as a banian cutting master at Mettupalayam. He used to give orders, for putting prints on the banians, to the factory in which P.W. 1 and deceased were working. So, it is quite natural for P.W. 2 to come to Tirupur to meet the proprietor Rajamanickam on the date of occurrence. At 11.00 a.m. the proprietor requested P.W. 2 to look after the factory, since he wanted to go outside for attending some personal work. In that context, P.W. 2 had to be in the office at about 11.00 a.m. At that time the accused came and requested for permission to see his wife who was working inside the factory. He was permitted to do so. After five minutes, P.W. 2 heard shouting noise. So, P.W. 2 went inside the factory and objected to the shouting of the accused. Then the accused asked the deceased to come out. When she showed her reluctance, the accused dragged her outside the factory, and in front of the factory, he appellant inflicted injuries on the abdomen and the deceased back, which was witnessed by P.W. 2 along with others. P.W. 2 immediately took a cycle and went in search of doctor. But doctor did not come to the spot. So, he came back. But, deceased in the meantime, she died. Then P.Ws. 1 and 2 with the 2 both went to the police station in an auto and P.W. 1 gave a complaint to the Sub-Inspector of Police. So, this evidence of P.W. 2 is amply corroborated by P.Ws. 1 and 2. P.Ws. 3, 4 and 5 are the workers who are independent witnesses who have no reason to speak falsehood against the accused. They have also given details of the occurrence which is in consonance with the contents of the First Information Report, Ex. P. 1 and the evidence of P.Ws. 1 to 3.
18. P.W. 11 who took up the investigation came to the spot immediately and held inquest and both the First Information Report and the Inquest Report were received by the Magistrate on the very same date. In fact, the First Information Report was received by the Court at 3.15 p.m. on the very same date, and the inquest report was received by the Court on 14-11-1988 at 12.00 hrs. So, virtually the entire investigation was over with regard to the involvement of the appellant in the commission of murder within 24 hours from the time of occurrence.
19. P.W. 7 doctor would contend that he found two injuries on the abdomen and the back. The injury on the back was noted as an oblique penetrating stab injury seen on the back of the lower half of the right side of the chest 2 cms. away from the vertebral column measuring 4 cms. x 2 cms. penetrating the throsic cavity in between the 7th and 8th ribs with oozing fluid blood from the wound. The doctor gave an opinion that the deceased would have died of shock and haemorrage as a result of the injury to th right lung. He would further state that the injury No. 2 and the corresponding internal injury would cause instantaneous death. This medical evidence is substantiated by the ocular evidence adduced by P.Ws. 1 to 5. So, in the light of the abundant materials available in the evidence brought on record, we have no hesitation to hold that the appellant had inflicted injury on the abdomen and the back of the deceased which resulted in her death.
20. Coming to the nature of the offence, the learned counsel for the appellant contended, as referred to earlier, that the materials would fall only under S. 304, Part II, I.P.C. and not under S. 302, I.P.C. The first decision cited in this connection is (Tholan v. State of Tamil Nadu). That case deals with the incident which occurred on a spur of the moment when the deceased came out of his house and asked the accused to go away and then the accused gave only one blow with the knife to the deceased and pushed him to some distance. In that case the accused abused using filthy language against certain organisers of a chit fund who had no connection with the deceased came out of his house and asked the accused to go away. Then, the accused on spur of moment gave only one blow with the knife. The next decision reported in 1985 Cri LJ 1589, Orissa High Court (Mangal Hansada v. State) deals with the case where the accused, a middle aged person, belonging to a tribal community, in a petty and sudden quarrel between him and the deceased his youngest brother over the door leaves demanded by the deceased, brought out a cutting instrument from inside his house saying that he would prepare other door-leaves by cutting bamboos from a bamboo clump nearby and on the spur of the moment in a fit of anger and without plan or premediation dealt only one stroke with the instrument on the neck of the deceased which resulted in his death. In 1983 Cri LJ 1002 (Delhi High Court) – (Jeewan Dass v. State) while dealing with the facts held that on the accused abusing the deceased, the deceased slapped the accused, and then the accused, in turn, brought a knife from a nearby house and thrust it into the thigh of the deceased, which resulted in her death subsequently. None of the abovementioned facts would be applicable to the facts of the present case, because, in this case, the accused forcibly caught hold of the tuft of the deceased and dragged her outside the factory and stabbed on the abdomen and then on the back of the deceased. Moreover, in the abovementioned cases cited by the learned counsel for the appellant, there was some provocation for the accused to take the weapon and to cause single blow on the vital organ of the deceased. But, in the case on hand, that is not the case. In reply to these submissions made by the learned counsel for the appellant, Mr. Venkatasubramanian, brought to our notice the following citations :- and . In (Vasanta v. State of Maharashtra), it is observed as follows :-
“It appears that there was some verbal altercation as a result of which the deceased had caught the hand of the accused, whereupon the accused assaulted the deceased with a knife with very great force according to medical evidence. In ‘view of the medical evidence and injuries received by the deceased the case squarely falls within four corners of Section 302, I.P.C. Mr. Lalit, however, submits that the case falls under Section 304, Part 2, I.P.C. in view of serious altercation between the parties as held by the trial Court. We are, however, unable to agree with this contention because there is nothing to show that the altercation was of such a serious nature which could cause sudden provocation. Secondly, the nature of injury, namely, the stab on the chest which resulted in the fracture of the 6th rib and injured the heart and the lung and which according to the doctor was given with great force showed that it was most cruel and therefore the case squarely falls under Section 302, I.P.C.”
IN (Aditya-Mohapatra v. State of Orissa), it has been observed as follows (Para 2) :-
“Learned counsel submitted that the offence fell under the second or the fourth exception to Section 300, I.P.C. He also urged that having regard to the circumstances of the case, the offence would only fall under the second part of Section 304 ………. We are unable to see how the offence can possibly be brought within the second limb of Section 304, I.P.C. The injury was intended was not accidental. The injury was on a vital portion of the body. It had penetrated the chest to a depth of 1 and 3/4 inch. The left lung had been pierced. The fourth rib was cut through and through, indicating that considerable force had been used. The injury inflicted by the accused was sufficient in the ordinary course of nature to cause death. The offence clearly fell within the 3rd limb of Section 300, I.P.C.”
In the light of those citations, the present facts of the case, in view, would definitely attract the offence under Section 302, I.P.C., since very serious injury was inflicted on the back of the deceased, namely, an oblique penetrating stab injury on the back of the lower half of the right side of the chest, measuring 4 cms. x 2 cms. penetrating the thorosic cavity in between the 7th and 8th ribs with oozing fluid blood from the wound, and the lateral end of the wound pointed, the medial end of the wound slightly curved, and the edges of the wound sharp and clean cut. The internal injury is an oblique incised wound on the posterior surface of the lower lobe of the right lung measuring 2 cm. x 1/2 cm. x 1/4 cm. So, this deep and serious wound would reflect the force at which the appellant has inflicted the injury.
21. Regarding the absence of motive for the occurence, Mr. Venkatasubramanian, representing the Public Prosecutor, cited the authority reported in 1996 (1) Supreme Court (Cri) – 543 (Hari Shanker v. State of U.P.), in which it is observed that even if the genesis of the motive of the occurrence was not proved, oculer testimony of the witnesses as to the occurrence could not be discarded only by reason of the absence of motive. Of course, though the motive was not established for the occurrence, the immediate motive is being spoken to by P.W. 1 to P.W. 5. When P.W. 2 asked the accused to go out of the factory and shout, the accused asked the deceased to come along with him go to his village, the deceased showed some reluctance. Therefore the appellant/accused forcibly took her outside the factory and inflicted the injuries.
22. Regarding identification parade, as held in (Harbajan Singh v. State of Jammu & Kashmir), the non-holding of the identification parade as regards the witnesses P.Ws. 2, 4 and 5, it cannot be considered to be fatal, because the occurrence took place in a broad day light at 11.30 a.m., and the occurrence went on taking place for about 30 to 45 minutes. So, the witnesses would have had an occasion to see the special and physical features of the accused/appellant in order to identify him in the Court. Further more, as the Supreme Court says, when the other material and the acceptable evidence are available to prove the offence, there is nothing wrong to take into consideration the piece of evidence of these witnesses also as such. There is no necessity for discarding the evidence of these witnesses merely because of the failure of the investigating agency to hold the identification parade.
23. So, the offence definitely would fall under Section 302, I.P.C. and not under Section 304, Part II, I.P.C., and also the offence would not come under any of the exception as contemplated under Section 300, I.P.C.
24. So, on the foregoing analysis, we are of the firm view that the offence is proved beyond all reasonable doubt by the trial Court, and the reasons given by the trial Court for convicting the appellant under Section 302, I.P.C. are proper and unassilable. Hence, the appeal has no merits, and it is dismissed.
25. Appeal dismissed.