{"id":82658,"date":"2005-07-06T00:00:00","date_gmt":"2005-07-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ayyanar-vs-state-of-tamilnadu-on-6-july-2005"},"modified":"2017-06-25T14:14:33","modified_gmt":"2017-06-25T08:44:33","slug":"ayyanar-vs-state-of-tamilnadu-on-6-july-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ayyanar-vs-state-of-tamilnadu-on-6-july-2005","title":{"rendered":"Ayyanar vs State Of Tamilnadu on 6 July, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
Ayyanar vs State Of Tamilnadu on 6 July, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 06\/07\/2005 \n\nCoram \n\nThe Hon'ble Mr.Justice M.KARPAGAVINAYAGAM        \nand \nThe Hon'ble Mr.Justice S.SARDAR ZACKRIA HUSSAIN       \n\nCRL.A. No.150 of 1998 \nand CRL.A. 969 of 1998 \n\nC.A.No.150\/1998  \n\n1. Ayyanar \n\n2. Allimuthu                                    ..Appellants\n\n-Vs-\n\nState of Tamilnadu, Rep.by\nThe Inspector of Police,\nMecherry Police Station\nCrime No.525\/93)                                ..Respondent\n\n\nC.A.No.969\/1998: \nState by Public Prosecutor,\nMadras.                                         ..Appellant\n\n\n-Vs-\n\n#1. Ayyanar \n\n2. Allimuthu                                    ..Respondents\n\n\n\n        Criminal Appeals against the judgment dated  18.2.1998  made  in  S.C.\nNo.60 of 1997 on the file of the III Additional Sessions Judge, Salem.\n\nC.A.No.150\/1998  \n\n!For Appellant-1 :  Mr.B.Sriramulu, S.C.  for\n                Mr.N.A.Ravindran\n\nFor Appellant-2 :  Mr.S.Shanmugavelayutham  \n\n^For Respondent :  Mr.  E.  Raja, Addl.  P.P.\n\n:COMMON JUDGMENT       \n\nM.KARPAGAVINAYAGAM, J.       \n<\/pre>\n
        Ayyanar  (A1)  and  Allimuthu  (A2)  were tried for the offences under
\nSections 341 and 302 read  with  34  I.P.C.    The  trial  Court,  ultimately,
\nconvicted both the accused finding them guilty in respect of the offence under
\nSection 341 I.P.C.  and acquitted them in respect of the offence under Section
\n302 read with 34 I.P.C.  However, A1 alone was convicted for the offence under
\nSection 304  Part I I.P.C.  Challenging the above conviction, both the accused
\nhave filed appeal in C.A.No.150 of 1998 before this  Court.    The  State,  on
\nbeing aggrieved by the acquittal of both the accused in respect of the offence
\nunder  Section  302 read with 34 I.P.C., has filed appeal before this Court in
\nC.A.No.96 9 of 1998.\n<\/p>\n
        2.  The factual scenario, according to the prosecution, is as follows:
\n        “(a) Ayyanar, the first accused  married  one  Poongodi,  who  is  the
\ndaughter of  Allimuthu, the second accused.  The deceased Kannan is the son of
\nP.W.2 Natesan who is the co-brother of A2 Allimuthu.  Both  the  families  are
\nstaying in the same village.\n<\/p>\n
        (b)  Before  the  marriage,  Poongodi  and  Kannan studied in the same
\nschool.  At that time itself, they developed illicit intimacy.  Even after the
\nmarriage of Poongodi, this illicit relationship continued.  Both  were  warned
\nby both the families, but they did not heed to their advice.\n<\/p>\n
        (c)  On  11.7.1993,  Ayyanar (A1) went to his petty shop and came back
\nhome in the evening.  To his shock, he  found  in  the  house  that  his  wife
\nPoongodi  and  deceased  Kannan  were  in  the bed in a compromising position.
\nHaving felt pained, the first accused  Ayyanar  went  to  the  bus  stand  and
\nthereafter to his garden.\n<\/p>\n
        (d) Next  day,  i.e.    on 12.7.1993 at about 10.00 a.m., Ayyanar (A1)
\ncame back to his house from his garden.  At that time, Poongodi, his wife  was
\nfound writing  something in a note book.  A1 took the note book and found that
\nshe was writing a letter to her paramour Kannan asking him to  take  her  with
\nhim so that both could elope.  Then, the first accused with the note book went
\nto the house of his father-in-law ( A2) and complained to him.  Then, both the
\naccused decided  to  do  away with the said Kannan.  Thereupon, A1 came to his
\nhouse and took a Soori knife.  Both of  them  joined  together  and  proceeded
\ntowards the house of Kannan through Mecherry Bazaar.\n<\/p>\n
        (e)  At  about  1.30  p.m.,  the deceased Kannan was found coming in a
\nbicycle on the road in front of Sub Registrar’s office.    Then,  Ayyanar  and
\nAllimuthu  (A1  and  A2) restrained him from proceeding further by hitting his
\nbicycle.  The deceased Kannan fell down from the cycle.  When he  got  up,  A2
\nAllimuthu  caught  hold  of  the  deceased  Kannan  from behind and A1 Ayyanar
\nstabbed the deceased with Soori  knife  on  the  abdomen.    Then,  the  crowd
\ngathered there.    This  was witnessed by P.W.2, the father of the said Kannan
\nand  two  other  witnesses,  viz.,  P.W.3  Vaithi  and   P.W.4   Elayaperumal.
\nThereupon, both the accused escaped from the scene.\n<\/p>\n
        (f)  On  noticing  that  the  deceased was with severe injuries on the
\nstomach gasping for life, P.W.2 Natesan, his father took him to the Government
\nHospital at Mecherry and then on the  advice  given  there,  he  took  him  to
\nGokulam Hospital and thereafter, he took him to another private hospital where
\nhe was  declared dead.  Thereupon, the dead body was taken back and brought to
\nthe Mecherry Police Station.\n<\/p>\n
        (g) On getting the information  that  the  deceased  died,  the  first
\naccused  went  to  P.W.1,  the  Village  Administrative  Officer,  and made an
\nextra-judicial confession, narrating the incident which  had  taken  place  in
\nwhich the deceased  died.    Then, P.W.1 V.A.O.  reduced the same into writing
\nand then took him to the police station and handed over the accused  with  the
\nknife  and  the  extra-judicial  confession  EX.P1  to P.W.10 Sub Inspector of
\nPolice.  The case was registered against both A1 and A2 for the offence  under
\nSection 302 I.P.C.\n<\/p>\n
        (h) P.W.13,  the Inspector of Police received the message.  He took up
\nthe investigation, went to the scene of occurrence  and  prepared  observation
\nmahazar and rough sketch.  He seized M.O.2 cycle from the scene of occurrence.
\nHe then conducted  inquest and examined P.W.2, P.  W.3 and others.  Then, from
\nthe police station, the body was sent for post-mortem.\n<\/p>\n
        (i) P.W.5 Doctor Balalakshmi conducted  post-mortem  on  13.7.1995  at
\nabout 10.20 a.m.    and  found  the  injury  on  the  stomach.  She issued the
\npost-mortem certificate Ex.P3 giving opinion that the deceased would appear to
\nhave died of shock and haemorrhage due to stab injury into the abdomen.\n<\/p>\n
        (j) In the meantime, from A1, the knife was recovered  at  the  police
\nstation and he was remanded to judicial custody.\n<\/p>\n
        (k)  Next  day, P.W.13 recovered Ex.P10 note book, written by Poongodi
\nfrom P.W.6, the wife of A2.  He also arranged to send M.O.1 Soori knife, M.O.3
\nshirt and M.O.4 lungi recovered from the accused for chemical  analysis.    A2
\nwas also arrested on the same day.\n<\/p>\n
(l)  P.W.14,  another  Inspector  of  Police took up further investigation and
\nexamined other witnesses and recovered M.O.6 motorcycle from the house of A2.\n<\/p>\n
(m) P.W.15, the Inspector of Police sent  the  note  book  for  comparison  of
\nhandwriting of   Poongodi  to  the  Expert.    After  obtaining  the  Chemical
\nExaminer’s report and the Handwriting Experts report,  he  filed  the  charge
\nsheet against both the accused under Section 302 read with 34 I.P.C.\n<\/p>\n
3.  During the trial, P.Ws.1 to 15 were examined, Exs.P1 to P19 were filed and
\nM.Os.1 to 6 were marked.\n<\/p>\n
4.   When  the  accused were questioned under Section 313 Cr.P.C., they denied
\ntheir complicity in the crime.  On their behalf, Ex.D1 was marked.    Both  of
\nthem filed their respective written statements.\n<\/p>\n
5.   The  plea  of  A1  is  that  A1  suspected  the  continuance  of  illegal
\nrelationship between Poongodi and Kannan and therefore, she was warned and  on
\nknowing  this, on the day of occurrence, the deceased Kannan came to the house
\nof A1 and picked up quarrel  with  him  questioning  his  conduct  of  abusing
\nPoongodi  and during the course of quarrel, the deceased Kannan took out Soori
\nknife and attempted to cause a stab on A1 and during the course of  the  same,
\nA1  had  managed  to  snatch  the  knife  from  the  deceased  and  by  way of
\nself-defence, he stabbed the deceased Kannan and thereafter, he  went  to  the
\npolice station, surrendered himself and gave a statement.\n<\/p>\n
6.  According to A2, though there was a misunderstanding between Kannan and A1
\nwith  regard to the illicit relationship, A2 did not accompany A1 to the place
\nof scene and participate in the occurrence.\n<\/p>\n
7.  On considering the materials placed by the parties, the trial Court though
\nbelieved the case of prosecution as far as A1 is concerned, acquitted both  A1
\nand A2  in  respect  of the offence under Section 302 read with 34 I.P.C.  and
\nconvicted A1 alone for the offence under Section 304 Part I I.P.C.  The  trial
\nCourt  further  found both the accused guilty of the offence under Section 341
\nI.P.C.  and convicted them thereunder.\n<\/p>\n
8.  As indicated above, having aggrieved over the conviction for  the  offence
\nunder  Section 341 against both the accused and conviction imposed upon A1 for
\nthe offence under Section 304 Part I I.P.C., both the accused filed  a  single
\nappeal in  C.A.No.150 of 1998.  The State through Public Prosecutor, aggrieved
\nby the acquittal of both the accused in respect of the offence  under  Section
\n302  read with 34 I.P.C., filed an appeal in C.A.No.969 of 1998, on the ground
\nthat exception would not apply and so conviction for  lesser  offence  is  not
\nlegal.\n<\/p>\n
9.  Mr.B.Sriramulu, the learned Senior Counsel appearing for A1 Ayyanar, would
\ntake  us  through  the  entire  evidence  and  contend  that there are various
\ninfirmities in the evidence of the eye witnesses P.W.2 and  P.W.4,  especially
\nwhen  both  of them are chance witnesses and at any rate, P.W.4 could not have
\nbeen present in the place of occurrence and purposely, the police put  him  as
\nan eye witness in the charge sheet, even though he was examined after 10 days.
\nThe  learned Senior Counsel would further contend that the failure on the part
\nof both P.Ws.2 and 4 to report about the  matter  immediately  to  the  police
\nstation  which  is  situated  nearby  the place of occurrence would make their
\nevidence doubtful and the extra-judicial confession given  by  A1  to  V.A.O.,
\nP.W.1, cannot  be given due credence in the light of the fact that V.A.O.  has
\nnot chosen to follow the procedure to record the extrajudicial confession  and
\nas  such,  the  entire  case  of  the  prosecution  would bristle with several
\nsuspicious features.  While opposing the appeal against acquittal filed by the
\nState, he would contend that even assuming that the prosecution case is  true,
\nthe  conclusion arrived at by the trial Court that the first accused is liable
\nto be convicted only for the lesser offence, namely, Section 304 Part-I I.P.C.
\nis preferably valid, as there are materials to show that the  occurrence  took
\nplace  in a sudden, grave and sustained provocation and the accused had caused
\nonly a single stab.\n<\/p>\n
10.  Mr.S.Shanmugavelayutham, the counsel for A2 Allimuthu, would contend that
\nEx.P1,  the  extra-judicial  confession,  given  by  A1  to   V.A.O.,   P.W.1,
\nimplicating  A2,  cannot at all be taken into consideration and, if at all, it
\ncould be used only against A1 and not against A2.  He would also point out the
\nvariation found in  the  deposition  of  the  witnesses,  P.Ws.2  and  4  with
\nreference to  the  part played by A2.  According to the learned counsel, A2 is
\nliable to be acquitted in entirety.\n<\/p>\n
11.  Mr.E.Raja, learned Additional Public Prosecutor,  while  elaborating  the
\nreasonings  for  accepting  the prosecution case, would contend that the trial
\nCourt having held that the  prosecution  case  is  true,  ought  not  to  have
\nacquitted  A1  and A2 in respect of the offence under Section 302 read with 34
\nI.P.C.  as there are no materials to show that the occurrence took place in  a
\nsudden and grave provocation so as to invoke Exception 1 to Section 300 I.P.C.
\nIn  brief,  the submission made by the learned Additional Public Prosecutor is
\nthat the judgment of acquittal in respect of the  offence  under  Section  302
\nread with  34  I.P.C.    has  to  be  set  aside  and both the accused must be
\nconvicted for the offence under Section 302 read with 34 I.P.C.\n<\/p>\n
12.   The  counsel  for  the  parties  would  cite  various   authorities   to
\nsubstantiate their respective pleas.\n<\/p>\n
13.   We  have  heard  the  counsel  for  the  parties  and  given our careful
\nconsideration to the rival contentions.\n<\/p>\n
14.  According to the prosecution,  Ayyanar  (A1),  husband  of  Poongodi,  on
\nnoticing his wife writing a letter in a note book asking Kannan, her paramour,
\nthe  deceased, to take her out of the house so that they could elope, took the
\nnote book to his father-in-law (A2) and showed the same and  thereafter,  they
\ndecided  to  do  away  with  Kannan,  the deceased and then, the first accused
\nAyyanar went to his house and took Soori knife and both of them  proceeded  to
\nthe house of the deceased Kannan and on the way, they found Kannan coming in a
\nbicycle  and  both  of  them waylaid him and while A2 Allimuthu caught hold of
\nhim, A1 Ayyanar stabbed him with the knife and caused his death and hence both
\nof them are liable to be convicted for murder.\n<\/p>\n
15.  Before dealing with the evidence relating to the part played by  A1,  who
\nattacked  the  deceased  and  caused  his  death,  it  would be appropriate to
\nconsider the role played by A2, the father- in-law of A1, in the light of  the
\nsubmissions made by Mr.Shanmugavelayutham, the learned counsel for A2.\n<\/p>\n
16.   The  earliest  document  in  this  case  is  Ex.P1,  the  extra-judicial
\nconfession, made by A1 to P.W.1.  In Ex.P1, the part played  by  A2  has  been
\nmentioned.   According  to the extra-judicial confession Ex.P1, made to P.W.1,
\nboth the accused i.e., A1 and A2 waylaid the deceased and while A2 caught hold
\nof him, A1 stabbed him on the stomach.  P.W.2, the father of the deceased, one
\nof the eye witnesses, would state that both  the  accused  came  in  different
\nmotorbikes  and  stopped  Kannan  from  proceeding  further  in the bicycle by
\nhitting against it.  The deceased Kannan fell down.  Then, A2 caught  hold  of
\nthe hands  of the deceased from behind.  Thereupon, A1 stabbed on the stomach.
\nOn the contrary, P.W.4 Elayaperumal, another eye witness, would state that the
\nsecond accused came near to the deceased and caught hold  of  his  hands  from
\nbackside and lifted him and asked A1 to remove the knife which was kept in the
\nbox  of his motorcycle and on his instigation, A1 opened the box attached with
\nthe motorcycle, removed the knife and then  stabbed  on  the  stomach  of  the
\ndeceased.   The  comparison  of  Ex.P1  with the deposition of P.W.2 and P.W.4
\nwould indicate that there is not only an improved  version  by  the  witnesses
\nstage  by  stage  with  reference  to  the role played by A2 but also there is
\ninconsistency in regard to the overt act attributed to A2.\n<\/p>\n
17.  It is the admitted case of the prosecution that after the occurrence  was
\nover,  both  the  accused left the place and A2 went to the police station and
\nmet the Head Constable Rathinam and talked something with him  and  thereafter
\nhe  left in his motorcycle and A1 straight went to P.W.1, the V.A.O., and made
\nan extra-judicial confession, implicating himself and A2.  This conduct of the
\naccused 1 and 2, as projected by the prosecution, is quite artificial.\n<\/p>\n
18.  If both of them were parties to the occurrence, either both  should  have
\ngone  together to the police station to surrender or both should have appeared
\ntogether  before  the  Village   Administrative   Officer   for   making   the
\nextra-judicial confession.   It is quite strange to see that A1 went to V.A.O.
\nseparately while A2 alone went to the police station straight.  The very  fact
\nthat  A2 went to the police station and had a mere conversation with Rathinam,
\nHead Constable, would indicate that he would  not  have  participated  in  the
\noccurrence  and  he  wanted to convey some other information to Head Constable
\nand accordingly he met him and then went away.   If  both  of  them  were  the
\nparties  to  the attack on the deceased, there is no necessity for A2 to allow
\nA1 alone to go to V.A.O.  and there is no reason for him to go  alone  to  the
\npolice station.\n<\/p>\n
19.   As  pointed  out  by  the  learned  counsel  for  A2, the extra-judicial
\nconfession  Ex.P1  which  is  inculpatory  statement  made  by  A1  to   P.W.1
\nimplicating himself and A2 would not be of any evidentiary value as against A2
\nin the  absence  of  any  other  acceptable  materials  against  him.  In this
\ncontext, it is to be remembered that  A2  has  been  acquitted  of  the  major
\noffence by  the  trial  Court  itself.  Therefore, we are of the view that the
\npresence of A2 in the place of  occurrence  is  doubtful  and,  as  such,  his
\nalleged act of wrongful restraint of the deceased along with A1 cannot be said
\nto be  established.    Hence,  the conviction and sentence imposed upon A2 are
\nliable to be set aside.\n<\/p>\n
20.  We shall now come to the materials as against A1.  P.Ws.2 and 4  are  the
\neye witnesses.  P.W.2, the father of the deceased had been examined during the
\ncourse of  the  inquest.    P.W.4,  even  though  was  not examined during the
\ninquest, was examined during the course of the investigation when P.W.14,  the
\nsuccessor Police Officer, took up further investigation.\n<\/p>\n
21.   Though it is argued that P.Ws.2 and 4 would not have been present during
\nthe course of the occurrence, we are unable to accept the said contention  as,
\nin  our  view, the evidence of P.W.2 and P.W.4, which is cogent and consistent
\nwith reference to the occurrence, inspires confidence, in  the  light  of  the
\nfact  that  the evidence of P.W.6 Doctor and the post-mortem certificate Ex.P3
\nwould clearly corroborate their testimony.\n<\/p>\n
22.  It has been argued that P.W.2 and P.W.4 had not chosen to report  to  the
\npolice immediately  and as such, their evidence cannot be believed.  This is a
\ncase where P.W.2, on seeing his son, the deceased, falling down  with  injury,
\nhad  an  anxiety  to  save  his son and arranged to take him to the Government
\nHospital and thereupon, on their advice, he took him to various hospitals  and
\nultimately, the deceased was declared dead and only then he came to the police
\nstation along  with  the dead body to report about the matter.  There, he came
\nto know that in the meantime a case was registered and accused were  arrested.
\nUnder those circumstances, it cannot be said that failure on the part of P.W.2
\nto  report  to  the police station immediately after the occurrence would be a
\nground to disbelieve his evidence.\n<\/p>\n
23.  Similarly, merely because there was some delay in examination  of  P.W.4,
\nit cannot be said that the prosecution version becomes doubtful.  It cannot be
\nlaid  down  as  a  rule of universal application that if there is any delay in
\nexamination of particular witness, his evidence  shall  be  looked  upon  with
\nsuspicion.   As observed in 2003 SUPREME COURT CASES (CRI.) 201 (BODHRAJ ALIAS
\nBODHA AND OTHERS v.  STATE OF JUMMU AND KASHMIR),  the  investigating  officer
\nhas  to be specifically asked as to the reasons for the delayed examination of
\nthe said witness.   In  the  instant  case,  no  questions  were  put  to  the
\ninvestigating officer.   A reading of the deposition of P.W.4 as a whole would
\nclearly indicate that he also was present near the place  of  occurrence  when
\nthe  occurrence  had  taken place and thereafter, A1 was in the police station
\nand a lot of crowd gathered in front of  the  police  station  compelling  the
\npolice to arrest A2 also.  In such circumstances, it cannot be stated that his
\nnon-complaining  to  police,  especially  when  the  police have already taken
\naction against A1, would create any suspicion with reference to  his  presence
\nat the time of occurrence.\n<\/p>\n
24.   The  evidence  of  both  P.W.2 and P.W.4 is not only corroborated by the
\nmedical evidence, but also by the fact that  the  weapon  recovered  from  the
\naccused  contained  the  blood group ‘O’ which tallied with the blood group of
\nthe deceased, as referred to in the report Ex.P7.\n<\/p>\n
25.  Further, the motive part also has been clearly  established  through  the
\nmaterials,  such as the evidence of P.W.2; Ex.P1, the extrajudicial confession
\nmade by A1 to P.W.1 and Ex.P12, the note book recovered from the house of  A2.
\nThe  report  of  the Handwriting Expert Ex.P19 would clearly indicate that the
\nletter in Ex.P12 note book requesting the deceased Kannan to take her  out  of
\nthe  house  to  avoid  further  torture  from  the first accused and to settle
\nsomewhere else was found to be in the handwriting of A1’s wife Poongodi.  That
\napart, both A1 and A2 themselves in their  written  statements  would  clearly
\nstate  that  there was an illicit relationship between the deceased Kannan and
\nPoongodi and consequently, there was an ill-will and enmity  for  the  accused
\nagainst the deceased.\n<\/p>\n
26.   Under  those  circumstances, we are of the view that the prosecution has
\nestablished the fact that the deceased and the  wife  of  A1  continued  their
\nillegal relationship and so the deceased was done to death at the hands of the
\nfirst  accused and, as such, the conclusion arrived at by the trial Court with
\nreference to the part played by A1 is perfectly justified.\n<\/p>\n
27.  The next question that arises for consideration is as to whether the plea
\nof private defence, which is one of the limbs of  arguments  advanced  by  the
\nlearned  Senior  counsel  for the first accused on the strength of the written
\nstatement filed by A1 at the stage of Section 3 13 Cr.P.C.   questioning,  can
\nbe accepted?\n<\/p>\n
28.   At  the  outset, this plea of private defence has to be rejected for the
\nsimple reason that nothing has been culled out from any one of  the  witnesses
\nwith reference to this plea and nothing was suggested relating to this plea to
\nany one of the witnesses during the crossexamination.\n<\/p>\n
29.   The  plea of the accused in the written statement is that the occurrence
\nhad taken place inside the house of  A1,  when  Kannan  voluntarily  came  and
\npicked up quarrel.   This plea has no basis.  On the other hand, the cycle, in
\nwhich the deceased was proceeding on the road  near  to  the  Sub  Registrar’s
\noffice, was  recovered  from  the  scene.    It is not disputed that the cycle
\nbelonged to the deceased.\n<\/p>\n
30.  The mere fact that no bloodstained earth was taken from the  scene  would
\nnot  be  a  ground to hold that the occurrence had not taken place in the said
\nplace, especially when P.W.2 would clearly explain in the cross-examination by
\nstating that when the blood was coming out of the stomach,  P.W.2  and  others
\nput cotton  on  the  wound and prevented the bleeding.  Therefore, there is no
\ndifficulty in accepting the case of the prosecution that  the  occurrence  had
\ntaken  place  only in the scene near the Sub Registrar’s office and not in the
\nhouse of A1 and, as such, the plea of private defence has to  be  rejected  in
\ntoto.\n<\/p>\n
31.  The alternative argument advanced by the learned Senior Counsel appearing
\nfor  the first accused, by way of reply to the Additional Public Prosecutor in
\nthe appeal against acquittal, is that at any rate, the conclusion  arrived  at
\nby the trial Court that the offence is not a murder and only culpable homicide
\nnot  amounting  to  murder  as  the occurrence had taken place in a sudden and
\ngrave provocation is perfectly valid.  He would elaborate the said argument by
\nstating that there are materials not only to show that there  was  sudden  and
\ngrave  provocation  but  also  that  the  incident was on account of sustained
\nprovocation and, as such, Exception 1 to Section 300 I.P.C.  will apply to the
\nfacts of the case and consequently,  the  conviction  for  the  offence  under
\nSection 304 Part-I I.P.C.  imposed by the trial Court may be sustained and the
\nappeal by  the  State  may  be  dismissed.  He also cited 19 88 L.W.(CRL.) 113
\n(CHANDRAN, IN RE) and an unreported judgment of this  Court  in  C.A.No.64  of
\n1991, dated 10.10.2000, to substantiate his submissions.\n<\/p>\n
32.   Let  us now deal with the contention urged by the learned Senior Counsel
\nappearing for A-1, relating to sudden and  grave  provocation  on  account  of
\nsustained  provocation,  in order to bring it under Exception 1 to Section 300
\nI.P.C.\n<\/p>\n
33.  As per Exception 1 to  Section  300  I.P.C.,  culpable  homicide  is  not
\nmurder,  if the offender, whilst deprived of the power of selfcontrol by grave
\nand  sudden  provocation,  causes  the  death  of  the  person  who  gave  the
\nprovocation  or  causes  the death of any other person by mistake or accident.
\nIn order to bring the case under Exception 1 to  Section  300  I.P.C.,  it  is
\nnecessary that the following facts should be established :
\n(1)  The  offender  must  have  done  the  act whilst deprived of the power of
\nself-control;\n<\/p>\n
(2) He must have been so deprived by reason of the provocation;\n<\/p>\n
(3) The provocation must have been grave and sudden;\n<\/p>\n
(4) The provocation must not have been sought for by the offender;\n<\/p>\n
(5) It must not have been voluntarily provoked by the offender  as  an  excuse
\nfor killing or doing harm to any person.\n<\/p>\n
34.     It  is  common  knowledge  that  the  term  “self-control” in the said
\nprovision is  a  subjective  phenomenon  and  it  can  be  inferred  from  the
\nsurrounding circumstances  of  a  given case.  Therefore, in order to find out
\nwhether the last act of provocation upon which the offender caused  the  death
\nwas sufficiently grave as to deprive him of the power of self-control, we have
\nto take into consideration the previous act  of  provocation,  caused  by  the
\ndeceased person.\n<\/p>\n
35.     While  interpreting  the  words  “grave  provocation”  and  “sustained
\nprovocation”,  a  Division  Bench  of  this  Court  has rendered a decision in
\nSuyambukkani v.  State (1989 L.W.(Crl.86), holding  that  though  there  is  a
\ndifference  between  provocation  as  defined  under Exception 1 and sustained
\nprovocation, the ingredient of sustained provocation is a series of acts  more
\nor  less  grave spread over a certain period of time, the last of which acting
\nas the last straw breaking the camel’s back may even be a  very  trifling  one
\nand,  as such, the sustained provocation also is an addition to the ingredient
\nof grave and sudden provocation, contemplated under Exception 1 to Section 300
\nI.P.C.\n<\/p>\n
36.  The Courts, through the decisions in A.I.R.1962 S.C.  605 (K.M.  NANAVATI
\nv.  STATE OF MAHARASHTRA)<\/a>; I.L.R.2 MADRAS  122  (THE  EMPRESS  v.    KHAGAYI);
\nI.L.R.3 MADRAS  33  (BOYA  MUNIGADU  v.    THE  QUEEN);  A.I.R.1957 MADRAS 541
\n(MURUGIEN,  IN  RE);  A.I.R.1958  ANDHRA  235  (CHERVIRALA  NARAYAN,  IN  RE);
\nA.I.R.1938 ALLAHABAD  532  (BALKU v.  EMPEROR); A.I.R.1960 ALLAHABAD 223 (BABU
\nLAL v.  STATE) and 1989 LAW WEEKLY (CRI.) 86 ( SUYAMBUKKANI v.  STATE OF TAMIL
\nNADU), have added  one  more  exception,  known  as  ‘sustained  provocation’.
\nAdmittedly,  the  word ‘sustained provocation’ is not available in Exception 1
\nto Section 300 I.P.C.  With these decisions, attempts have been made to  bring
\nsustained provocation under Exception 1 to Section 300 I.P.C.\n<\/p>\n
37.   There  is  a  cardinal  difference  between provocation as defined under
\nException 1 to Section 300 and sustained provocation.  The only word which  is
\ncommon is ‘provocation’.  What Exception 1 contemplates is, a grave and sudden
\nprovocation,  whereas  the  ingredient of sustained provocation is a series of
\nacts more or less grave spread over a certain period  of  time,  the  last  of
\nwhich acting  as  the last straw breaking the camel’s back.  The last incident
\nmay even be a trifling one.  Therefore, while considering  whether  there  are
\nmaterials  to  indicate  that  there  is  a  grave  and  sudden provocation as
\ncontemplated  under  Exception  1  to  Section  300  I.P.C.,   the   sustained
\nprovocation,  on  account of a series of acts more or less grave spread over a
\ncertain period of time, would be undoubtedly  considered  as  an  addition  to
\nException 1 to Section 300 I.P.C.\n<\/p>\n
38.   While  considering Exception 1 to Section 300 I.P.C., the Courts have to
\nanalyse the materials in order to find out whether the provocation was  sudden
\nand grave.    It means, if the provocation is not grave or not more serious in
\nnature, it will not come under Exception 1 to Section 300  I.P.C.    But,  for
\nthis  proposition, there is some exception with reference to the applicability
\nof sustained provocation.  In other words, if the accused has  been  nurturing
\nill-will for a long period because of the conduct of the deceased, even in the
\nlong  period,  due  to  the  series  of  acts, the last act which provoked the
\naccused to attack the deceased on the spur of the moment might be  a  trifling
\none.   Also,  while  considering the exception in relation to sudden and grave
\nprovocation, the Court has to consider not only the last incident, which is  a
\ntrifling  one,  but also the series of incidents which took place earlier, due
\nto which the accused was nurturing ill-will against the deceased.\n<\/p>\n
39.  Bearing these principles in mind, we have to analyse the prosecution case
\nto find out whether the case  of  the  accused  would  come  under  the  first
\nexception to Section 300 I.P.C.\n<\/p>\n
40.   According  to  the  prosecution, the first accused on 11.7.1993 evening,
\nwhen he came back home,  found  his  wife  Poongodi  and  the  deceased  in  a
\ncompromising position.   At  that  time, he did not react.  He went to the bus
\nstand and thereafter, went to his garden.  Next day morning, he came at  10.00
\na.m.   At  that  point  of  time,  he  found  that Poongodi, his wife, writing
\nsomething in a note book.  He snatched the note book from her  and  found  out
\nthat  she was writing a letter to the said Kannan, the deceased, asking him to
\ntake her along with him so that they could elope.  At that time also,  he  did
\nnot react.    On  the  other  hand, he went and met A2, his father-in-law, and
\nshowed the note book to him.  Thus,  the  incident  that  took  place  in  the
\nearlier  day  evening,  when  he  found  both  his  wife  and  the deceased in
\ncompromising position, and the incident on the next day  morning,  wherein  he
\nfound  his  wife  writing  a  letter to her paramour, did not give rise to any
\nprovocation, which is sudden and grave.  Conversely, he went to A2’s house and
\ncomplained to him and thereupon, he took a decision, came home, took the knife
\nwith him and proceeded towards the house of Kannan for the purpose of  causing
\nhis death.  On noticing Kannan coming in a cycle in the opposite direction, he
\nwaylaid  him  and  attacked  him  with  the  knife by inflicting injury on the
\nstomach.\n<\/p>\n
41.  In this case,  if  at  all  there  is  a  chance  for  sudden  and  grave
\nprovocation  for  the first accused to get provoked and to do harm to the life
\nof the deceased, it must be only when he saw the deceased  in  a  compromising
\nposition with Poongodi,  his wife.  At that time, he had no provocation.  Next
\nday, he came and saw his wife writing letter in a note book  to  the  deceased
\nasking him  to  co  me  and  take  her.    At  that  time  also,  there was no
\nprovocation.  If at all there was any sudden and  grave  provocation  for  the
\nfirst  accused, it must be at that moment only by attacking the said Poongodi.
\nBut, that is not the case here.  On the other hand, he went to the house of A2
\nand after a deliberation, he came home and  took  the  knife  and  thereafter,
\nproceeded  to  the house of Kannan with a design to kill him and on seeing him
\ncoming in the opposite direction, attacked him and  caused  his  death.    So,
\nthere  is  neither  sudden  and grave provocation nor anything happened at the
\ntime of the incident at the instance of the deceased  so  as  to  provoke  him
\nfurther to attack the deceased out of sustained provocation.\n<\/p>\n
42.   Both  the  decisions  cited  by the learned Senior Counsel for the first
\nappellant would refer to various incidents in which the accused was  nurturing
\nthe  ill-will  against the deceased and also the provocative words used by the
\ndeceased against the accused in the last incident, due to  which  the  accused
\ngot provoked  and  committed  the act.  These decisions would not apply to the
\npresent case.\n<\/p>\n
43.  Lastly, it is argued that it was a single stab on a  non-vital  part  and
\ntherefore,  it  would  attract  the  lesser  offence,  on  the strength of the
\ndecision in K.RAMAKRISHNAN  UNNITHAN  v.    STATE  OF  KERALA  (A.    I.R.1999
\nS.C.1428).<\/a>\n<\/p>\n
44.  This  submission  also,  in  our view, lacks substance.  According to the
\nprosecution, the first  accused  came  to  the  place  of  occurrence  with  a
\npre-concerted plan  to  attack  the  deceased and cause his death.  P.W.5, the
\nDoctor has given evidence that the injury is sufficient to cause the death  in
\nthe ordinary  course of nature.  In Ex.P3, the opinion has been given that the
\ndeceased would appear to have died of shock and haemorrhage due to stab injury
\ninto the abdomen.\n<\/p>\n
45.  It is true, as admitted by P.W.5 Doctor, that stomach is a nonvital part.
\nBut, the fact remains that it has caused a very serious injury on a vital part
\ninside the body.  The details are as follows:\n<\/p>\n
“A stab wound 2.5 cm x 1.5.  cm extending into  the  peritoneal  cavity  5  cm
\nabove the umbilicus in the midline towards right to left, above downwards.  ()
\nedges clear cut.    Internal Exam:  On opening the wound 10 cm x 6 cm x 2.5 cm
\nhaematoma seen in the mesocolon.  Mesenteric vessels seen cut.”\n<\/p>\n
46.  The above particulars would indicate that the stab  caused  a  very  deep
\ninjury into  the  arteries.    These things would make it clear that the first
\naccused must be attributed with the knowledge that when he  used  M.O.1  Soori
\nknife  measuring  about  38.5  cm,  as found in Ex.P4, Mahazar, and forcefully
\nstabbed on the stomach portion, he knew that it would cause death of the  said
\nperson.  Thus,  the  intention to kill is so explicit.  The intention to cause
\ndeath has to be inferred from various  factors  such  as  the  nature  of  the
\nweapon,  nature  of  the  injury, the part of the body on which the injury was
\ninflicted, the force with which the weapon has been employed, the  motive  and
\nother circumstances.\n<\/p>\n
47.   This  is  a  case  where the first accused went to his home and took the
\nlengthy knife with a plan to kill the deceased and proceeded towards his house
\nand when the deceased was coming in a bicycle near the Sub Registrar’s Office,
\nhe gave a heavy stab on the stomach which cut the mesenteric  vessels.    This
\ndefinitely  indicates  the intention of the first accused to use the knife and
\ncause serious injury cutting the mesenteric vessels in  order  to  murder  the
\ndeceased.\n<\/p>\n
48.   When  there  is no material whatsoever for coming to the conclusion that
\nthe incident took place  in  a  sudden  and  grave  provocation  or  sustained
\nprovocation,  in  the  absence  of any incident causing further provocation to
\nattack the deceased, the trial Court, in our view, ought not to have acquitted
\nthe first accused in respect of the major offence  under  Section  302  I.P.C.
\nand simply convicted him for the lesser offence.\n<\/p>\n
49.  While dealing with the appeal against acquittal, the following guidelines
\nhave to be borne in mind, as laid down by the Supreme Court :\n<\/p>\n
(A)  There  is  no  embargo on the appellate court reviewing the evidence upon
\nwhich an order of acquittal in respect of the offence under Section 302 I.P.C.
\nis based.\n<\/p>\n
(B) If two views are possible  on  the  evidence  adduced  in  the  case,  one
\npointing  to the guilt of the accused and the other to his innocence, the view
\nwhich is favourable to the accused should be adopted.\n<\/p>\n
(C) The paramount consideration of the court is to ensure that miscarriage  of
\njustice is prevented.\n<\/p>\n
(D)  In  a  case where admissible evidence is ignored, a duty is cast upon the
\nappellate court to reappreciate the evidence even where the accused  has  been
\nacquitted, for the purpose of ascertaining as to whether the accused committed
\nthe offence or not.\n<\/p>\n
50.  The above principles have been laid down by the Supreme Court in STATE OF
\nU.P.  v.  BABU<\/a> (2004 S.C.C.(Cri) 144), STATE OF PUNJAB v.  KARNAIL SINGH<\/a> (2004
\nS.C.C.(Cri) 135) and BHAGWAN SINGH v.  STATE OF M.P.( 2002(4) S.C.C.85).\n<\/p>\n
        51.   In  this  case,  the  trial  Court  has  not only considered the
\nadmissible evidence, but also accepted the evidence  and  even  then,  it  had
\nacquitted  the  first accused in respect of the major offence, namely, murder,
\nby ignoring the principles for converting the case of  murder  into  a  lesser
\noffence.   Therefore,  the  conviction  and  sentence  imposed  upon the first
\naccused under Section 304 Part-I I.P.C.  are set  aside  and  instead,  he  is
\nconvicted for  the  offence under Section 302 I.P.C.  and sentenced to undergo
\nlife imprisonment.\n<\/p>\n
        52.  Sum up:\n<\/p>\n
        (i) The conviction and sentence imposed upon A2 for the offence  under
\nSection 341 I.P.C.  are set aside and he is acquitted of that charge also.\n<\/p>\n
        (ii)  The  conviction  and  sentence imposed upon A1 under Section 304
\nPart-I I.P.C.  are set aside and instead, he  is  convicted  for  the  offence
\nunder Section 302 I.P.C.  and sentenced to undergo imprisonment for life.\n<\/p>\n
        (iii)  The  conviction  and sentence imposed upon A1 under Section 341
\nI.P.C.  by the trial Court stand confirmed.\n<\/p>\n
        (iv) The trial Court is directed to take steps to secure  the  custody
\nof the first accused to undergo the remaining period of sentence.\n<\/p>\n
        (v)  Criminal  Appeal  No.150  of  1998 is partly allowed and Criminal
\nAppeal No.969 of 1998 is allowed.\n<\/p>\n
Index:  Yes
\nInternet :  Yes<\/p>\n
mam  <\/p>\n
To\n<\/p>\n
1) The III Additional Sessions Judge, Salem.\n<\/p>\n
2) -do through the Prl.  Sessions Judge, Salem.\n<\/p>\n
3) The Judicial Magistrate No.II, Mettur, Salem District.\n<\/p>\n
4) -do- through the Chief Judicial Magistrate, Salem.\n<\/p>\n
5) The Superintendent, Central Prison, Coimbatore.\n<\/p>\n
6) The District Collector, Salem.\n<\/p>\n
7) The Director General of Police, Chennai.\n<\/p>\n
8) The Public Prosecutor, High Court, Madras.\n<\/p>\n
9) The Inspector of Police, Mecherry Police Station, Salem.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Ayyanar vs State Of Tamilnadu on 6 July, 2005 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-82658","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAyyanar vs State Of Tamilnadu on 6 July, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ayyanar-vs-state-of-tamilnadu-on-6-july-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ayyanar vs State Of Tamilnadu on 6 July, 2005 - 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