Madras High Court
Lenin Kumar vs State on 23 March, 2006
Author: P.D.Dinakaran
Bench: P.D.Dinakaran, P.Murgesen
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23/03/2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE P.MURGESEN Criminal Appeal Nos.1160 of 2002 Criminal Appeal Nos.1164 of 2002 1. Lenin Kumar 2. Murugaiah alias Murugan ... Appellants in Crl.A.No.1160 of 2002 Annamalai ... Appellant in Crl.A.No.1164/2002 vs. State, rep. by Inspector of Police, Srivaikundam Police Station, Thoothukudi District. (Crime No.7/1998) ... Respondent in both the appeals. Criminal Appeals filed under Section 374(2) of the Code of Criminal Procedure against the judgment of the learned Additional Sessions Judge (Fast Track Court No.II) Tuticorin, dated 26.06.2002 in Sessions Case No.126 of 2000. !For Appellants in ... Mr.B.Pugalendhi Crl.A.No.1160/2002 ^For Appellant in ... Mr.S.Hameed Ismail Crl.A.No.1164/2002 For Respondent ... Mr.K.Radhkrishnan, Additional Public Prosecutor :COMMON JUDGMENT
(The judgment of the Court was delivered by P.D.DINAKARAN,J.) The challenge in the above appeals is to the legality of the judgment dated 26.06.2002 made in Sessions Case No.126 of 2000 on the file of the Additional Sessions Judge (Fast Track Court No.II), Tuticorin.
1.2. Accused Nos.1 and 2 and Accused No.3 have filed Criminal Appeal Nos.1160 and 1164 of 2002 respectively. Accused No.1 is convicted for the offences punishable under Sections 302 and 307 I.P.C. and sentenced to undergo life imprisonment with a fine of Rs.500/- in default to undergo one month rigorous imprisonment under Section 302 I.P.C. and three years rigorous imprisonment under Section 307 I.P.C. Accused Nos.2 and 3 are convicted under Section 302 r/w 34 I.P.C. and sentenced to undergo life imprisonment with a fine of Rs.500/- in default to undergo one month rigorous imprisonment. The sentences imposed on Accused No.1 were directed to run concurrently. The appellants in both the appeals will hereinafter be referred to as arrayed before the trial Court.
2. The charge against Accused 1 to 3 is that on 06.01.1998 at 8.30 p.m. at Door No.4/46, North Street, Pudhupatti village, with an intention to cause the death of the deceased in this case viz., Subbulakshmi, armed with deadly weapon, viz., aruval, trespassed into her house, which act is punishable under Section 449 I.P.C.; in the course of the same transaction, Accused No.1 with an intention to cause the death of the deceased, cut her with M.O.1 aruval on her right chest, right ribs and left thigh, which act is punishable under Section 302 I.P.C.; in the course of the same transaction, when Accused No.1 attacked the deceased with an intention to cause her death, Accused Nos.2 and 3 abetted him and Accused No.2 cut the deceased with M.O.3 aruval on her left ribs and on her back and Accused No.3 cut the deceased with M.O.2 aruval on her left elbow and left hand fingers, which act is punishable under Section 302 r/w 34 I.P.C.; and in the course of the same transaction, Accused No.1 with an intention to cause the death of P.W.1, cut on his left shoulder, which act is punishable under Section 307 I.P.C.
3.1. The factual back ground of the prosecution case in a nutshell is as follows:
P.W.1 Muthukrishnan, is an injured eye witness and also the complainant, who is nonetheless the son of the deceased in this case viz., Subbulakshmi, whose evidence corroborates with that of P.W.5 Sankaranpillai and P.W.6 Sornavadivu, who are husband and daughter of the deceased respectively and also eye witnesses to the occurrence.
3.2. Accused Nos.1 to 3 are friends among themselves, who are aged about 26, 31 and 22 respectively at the time of occurrence. The occurrence had taken place at about 8.30 p.m. on 06.01.1998 in the house of the deceased herself located in a small village called Pudhupatti, Srivaikundam Taluk.
3.3. It is a common case of the prosecution as spoken to by P.Ws.1, 5 and 6 that P.W.8 Jeyakumar, a bus driver, Government Transport Corporation, used to go for dinner to their house, as the bus used to halt in their village after the last trip at 10. p.m. every day and after the dinner P.W.8 used to go to his bed in the bus itself. The visit of P.W.8 was the ground for making disparaging remarks against the deceased.
3.4. Accordingly, even on 03.01.1998 when P.W.8 came between 10.00 and 11.00 p.m., two persons questioned about his visit to the house of the deceased and the same was reported to P.W.9 Palaniyapillai, Village Leader, who turned hostile.
3.5. The story of the prosecution case could be traced from a sudden wordy quarrel between the deceased and the mother of Accused No.1, which had taken place at 11.00 a.m. on the fateful day i.e. 06.01.1998, as spoken to by P.W.7.
The deceased was the maternal aunt of P.W.7.
3.6. P.W.1 deposed that when the deceased was passing through the house of Accused No.1, his mother was standing at the doors. The deceased questioned as to what Accused No.1 would gain by branding the deceased as prostitute, which turned into a sudden quarrel between them, followed with an altercation casting character assassination against each other and as a result, mother of Accused No.1 challenged the deceased that she will deal with her through Accused No.1. Of course, the mother of Accused No.1 was not examined by the prosecution.
3.7. Thereafter, on the same day at 8.30 p.m. when P.W.1 was taking food in the kitchen, P.W.6 was serving food, P.W.5 was sitting in a room and the deceased was in pooja room, Accused Nos.1 to 3, each holding an aruval in their hands viz., M.Os. 1, 3 and 2 respectively, entered into the house of the deceased. Accused No.1 accompanying with Accused Nos.2 and 3, addressing the deceased as prostitute and using filthy words on her and shouting that only if she is left alive, she would be quarreling with his mother, with M.O.1 aruval cut indiscriminately on her right chest, right ribs, right elbow and on the back side of left thigh. Accused No.3 with M.O.2 aruval cut on her left elbow and left hand fingers. Accused No.2 with M.O.3 aruval cut on her left ribs and on back. By that time, P.Ws.1, 5 and 6 came to the scene of occurrence and saw the overt acts.
3.8. When P.W.1 came to rescue the deceased, Accused No.1 by shouting you also die, cut with M.O.1 aruval on his left shoulder. Thus, receiving a cut on his left shoulder, P.W.1 ran away. Immediately thereafter Accused Nos. 1 to 3 fled away from the scene of occurrence.
3.9. P.W.1, on his immediate return to the scene of occurrence, saw her mother lying dead in a pool of blood. P.W.1 along with P.W.5 went to Srivaikundam Police Station and gave a statement. P.W.14 Sub Inspector of Police recorded Ex.P1, statement from P.W.1 at 11.00 p.m. on 06.1.1998 and registered a case in Crime No.7 of 1998 under Sections 452, 307 and 302 I.P.C. Thereafter, he prepared Ex.P15, printed first information report and forwarded the same to the jurisdictional Magistrate and to the higher police authorities through P.W.12 Police Constable.
3.10. Based on Ex.P15, P.W.15 Inspector of Police, took up the investigation and proceeded to the scene of occurrence at 6.00 a.m. on 07.01.1998 and prepared Ex.P9, observation mahazar, and Ex.P16, rough sketch, in the presence of P.W.10 Subbiah, Village Administrative Officer, Srimoolakarai and another.
3.11. In the presence of the same witnesses, P.W.15 recovered M.O.4, chappel, M.O.5, bloodstained cement mortar, and M.O.6, sample cement mortar, under Ex.P10, mahazar, attested by the same witnesses. The Inspector also conducted inquest and prepared Ex.P17, inquest report. Thereafter, the body was sent through P.W.13 Police Constable for postmortem. He also recovered M.Os.7 to 11, personal apparels, found on the body of the deceased under Form 95 produced by P.W.13.
3.12. In the meanwhile, P.W.3 Dr.Subbiah, Civil Surgeon, Government Hospital, Srivaikundam, examined P.W.1 and treated him at 1.00 a.m. on 07.01.1998. As per his statement, P.W.1 sustained a cut injury on his left shoulder of 7cm x 1cm x 1/2cm and the same is simple in nature. He issued Ex.P4, accident register, to that effect.
3.13. P.W.2, Dr.Pandurengan, Government Hospital, Srivaikundam, conducted autopsy over the body of the deceased at 1.30 p.m. on 07.01.1998. As per the postmortem certificate (Ex.P3), there were eight cut injuries on the body of the deceased and the death was due to injury to major blood vessels and other multiple injuries caused on the deceased.
3.14. On 13.1.1998 P.W.15 arrested Accused No.2. Accused No.2 voluntarily gave a confession statement in the presence of P.W.10 and another. Ex.P11 is the admissible portion of the statement, pursuant to which, M.Os.1 to 3, aruvals, were recovered under Ex.P12, mahazar, attested by P.W.10 and another.
3.15. P.W.15 sent the material objects with Ex.P5, requisition, to the Court to subject them for chemical analysis and the same were sent to the laboratory under Ex.P6, Court's letter. Exs.P7 and P8 are the Chemical Analysis Report and the Serologist Report respectively. He examined the witnesses and recorded their statements. Accused No.1 surrendered before Judicial Magistrate No.I, Tirunelveli and Accused No.3 surrendered before Judicial Magistrate No.I, Kovilpatti. P.W.16, Inspector of Police, who succeeded P.W.15, on completion of the investigation, filed a final report against the accused for the offences punishable under Sections 449, 307 and 302 r/w 34 I.P.C. on 25.3.1998.
4.1. Before the Sessions Court, on behalf of the prosecution, P.Ws.1 to 16 were examined as witnesses and Exhibits P1 to P17 and material objects M.O.1 to M.O.11 were marked.
4.2. The accused were questioned under Section 313 Cr.P.C. in respect of the incriminating circumstances appearing against them, but they denied everything. The accused neither examined any witness nor marked any document on their side.
5. On consideration of the oral and documentary evidence available on record, the learned Sessions Judge convicted and sentenced the accused as referred to earlier. Hence, the appeal.
6.1. Learned counsel for the appellants seek only modification of the conviction and sentence. Firstly, learned counsel for the appellants submitted that there is no common intention among the accused to commit the murder of the deceased and therefore, the conviction of Accused Nos.2 and 3 under Section 302 with the aid of section 34 I.P.C. is liable to be set aside.
6.2. The second contention of the appellants is that the entire episode has taken place only in continuation of the quarrel ensued between the mother of Accused No.1 and the deceased as spoken to by P.W.7. The act of the appellants would fall under exception 4 to Section 300 I.P.C. and therefore, the conviction of accused under Section 302 I.P.C. is liable to be set aside and instead they are punishable only under Section 304 I.P.C.
7. Per contra, learned Additional Public Prosecutor contended that though the appellants are not disputing their involvement in the commission of crime, the prosecution has brought overwhelming evidence to prove the common intention on the part of the accused in committing the murder of the deceased as spoken to by P.Ws.1, 5 and 6, who have also cogently narrated the occurrence in a convincing manner. Further, the occurrence had taken place at 8.30 p.m. on 06.1.1998, but the quarrel was at 11.00 a.m. and therefore, it cannot be said that there was a sudden quarrel prior to the occurrence which weighed in the minds of the accused to commit the attack on the deceased and therefore, there is no reason to bring the act of the accused under Exception 4 to Section 300 I.P.C. and the lower Court has rightly convicted the appellants which requires confirmation by this Court.
8. We have given careful consideration to the submissions of both sides in the light of the evidence available on record and the materials placed before us.
9.1. The deceased in this case is the mother of P.W.1 and P.W.6 and the wife of P.W.5. The motive for the occurrence as alleged by the prosecution is that Accused No.1 made the character assassination of the deceased, since P.W.8 the driver of the bus used to visit the house of the deceased during night hours when he used to halt at the occurrence village. Two days night prior to the day of occurrence when P.W.8 was returning from the house of the deceased at about 10.00 p.m. all the accused questioned and beat P.W.8 by saying that at this unusual time what work he had in the house of the deceased. On hearing this, P.W.5 reported the matter to P.W.9, who is stated to be the respectable man in the village and requested him to advise suitably the accused.
9.2. On 06.01.1998 at 11.00 a.m. the deceased was crossing the house of Accused No.1; when she saw the mother of Accused No.1, standing at the house of Accused No.1, the deceased questioned the mother of Accused No.1 as to what Accused No.1 was going to gain by branding the deceased as a prostitute. Consequently, there was an altercation between the deceased and the mother of Accused No.1, casting character assassination against each other. Ultimately, the mother of Accused No.1 challenged the deceased that she will deal with her through her son viz., A1. This was witnessed by P.W.7.
9.3. It is the further case of the prosecution that at about 8.30 p.m. on the same day (06.01.1998) all the accused, armed with M.Os.1 to 3 (aruvals), trespassed into the house of the deceased, yelling the deceased as prostitute and using filthy words against her, shouted that she would be quarreling with his mother only if she is left alive and cut indiscriminately with M.O.1 aruval on her right chest, right ribs, right elbow and on the back side of left thigh.
9.4. Accused No.3 with M.O.2 aruval cut on her left elbow and left hand fingers. Accused No.2 with M.O.3 aruval cut on her left ribs and on back. By that time, P.Ws.1, 5 and 6 came to the scene of occurrence and saw the overt acts. When P.W.1 came to rescue the deceased, Accused No.1 by shouting you also die, cut with M.O.1 aruval on his left shoulder. Thus, receiving a cut on his left shoulder, P.W.1 ran away.
9.5. This version of prosecution case is spoken to by P.Ws.1, 5 and 6 in their evidence in a cogent and convincing manner and their evidence is supported by medical evidence in the form of oral evidence of P.W.2, the Doctor, who conducted autopsy over the dead body and P.W.3, the Doctor, who gave treatment, coupled with Ex.P3, postmortem certificate, and Ex.P4, Accident Register, issued to P.W.1.
9.6. The above evidence of P.Ws.1, 5 and 6 clearly spells out the common intention in the minds of all the three accused to attack the deceased. Therefore, it cannot be said that there was no common intention among the accused in committing the offence and accordingly, we reject the contention of the learned counsel on this aspect.
9.7. Elaborating the contention that the act of the accused would attract Exception 1 to Section 300 I.P.C., learned counsel for the appellants, invited our attention to the evidence of P.Ws.1, 5, 6 and 7, and contended that there was a wordy quarrel between the deceased and the mother of Accused No.1 at 11.00 a.m. on the occurrence day, followed by which an altercation took place between the mother of Accused No.1 and the deceased, casting character assassination against each other. Thus, it is their contention that it was the deceased who initiated the quarrel with the mother of Accused No.1 and in which quarrel, the mother of Accused No.1 challenged the deceased that she would deal with the deceased through her son viz., Accused No.1. When this was informed to Accused No.1 by his mother, Accused No.1 got provoked with the act of the deceased, which took him to the extent of causing the death of the deceased with the help of his friends viz., Accused Nos.2 and 3 and therefore, the act of the accused would squarely attract Exception 1 to Section 300 I.P.C. and the offence is punishable under Section 304 I.P.C.
9.8. We see some force in the above contention of the learned counsel for the appellants. The appellants are youngsters in the age group of 20 to 30, which age would definitely tend to indulge in such kind of act, especially when the mother suffered a character assassination.
9.9. In the instant case, the deceased initiated the quarrel with the mother of Accused No.1 and there was an altercation at 11.00 a.m. on the occurrence day between them, casting character assassination against each other, as a result, the mother of Accused No.1 threw a challenge that her son Accused No.1 would deal with the deceased. The said altercation ignited the provocation in the mind of Accused No.1, who picked up weapon accompanied by Accused Nos.2 and 3, and attacked the deceased and inflicted fatal injuries on her which caused her death. In such a case, the number of wounds caused during the occurrence is not a decisive factor, but what does it matter is that the occurrence had taken place on account of provocation as a result of an altercation between the mother of Accused No.1 and the deceased casting character assassination against each other. Hence, it would not be safe to convict Accused No.1 under Section 302 I.P.C., but the conviction should be converted into one under Section 304 Part-I I.P.C. as the intention of Accused No.1 to cause the death of the deceased has been clearly established by the prosecution, attracting Section 304 Part-I I.P.C., which applies to a case when the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. Therefore, the conviction and sentence imposed on Accused No.1 for his act of causing the death of the deceased is altered into one under Section 304 Part-I I.P.C.
10. As the prosecution proved beyond all reasonable doubts that all the accused carried the weapons and attacked the deceased to achieve their common intention viz., to cause the death of the deceased, the conviction and sentence imposed on Accused Nos.2 and 3 under Section 302 r/w 34 I.P.C. are set aside and instead they are convicted under Section 304 Part-I r/w 34 I.P.C.
11. It is clear from the evidence that Accused No.1 also attempted on the life of P.W.1 which resulted an injury on the left shoulder of P.W.1 as spoken to by P.W.1 himself and corroborated by the medical evidence of P.W.3, who gave treatment to him and the wound certificate (Ex.P4) given by him. Therefore, the conviction and sentence imposed on Accused No.1 under Section 307 I.P.C. require to be confirmed and accordingly, they are confirmed.
12. In result, the conviction and sentence imposed on Accused No.1 under Section 302 I.P.C. and under Section 302 r/w 34 I.P.C. on Accused Nos.2 and 3 are set aside and instead, Accused No.1 is convicted under Section 304 Part-I I.P.C. and Accused Nos.2 and 3 are convicted under Section 304 Part-I r/w 34 I.P.C. and sentenced each to undergo rigorous imprisonment for 10 years with a fine of Rs.5,000/- each and a compensation of Rs.10,000/- each, which shall be paid to P.W.5, the husband of the deceased. Such fine and compensation shall be paid by the accused within thirty days from today, failing which, they shall further undergo rigorous imprisonment for two years as default sentence.
With the above modification in conviction and sentence, both the appeals are partly allowed.
ATR
1. The Additional Sessions Judge, (Fast Track Court No.II), Tuticorin.
2. The Inspector of Police, Srivaikundam Police Station, Tuticorin District.
3. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.