Madras High Court
Uthirasamy vs State Represented By on 20 February, 2007
Author: Prabha Sridevan
Bench: Prabha Sridevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:20.02.2007
CORAM
THE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN
&
THE HON'BLE MRS.JUSTICE PRABHA SRIDEVAN
CRL.APP.NO.986 OF 2005
Uthirasamy ..Appellant
Vs.
State represented by
Inspector of Police
Kolathur Police Station
Salem District ..Respondent
Prayer: Criminal appeal against the judgment dated
14.11.2005 passed by the learned Principal Sessions Judge,
Salem in S.C.No.250/2005.
For Appellant : Mr.K.V.Sridharan
For Respondent : Mr.N.R.Elango, APP
JUDGMENT
(Judgment of the court was delivered by Justice R.Balasubramanian) The appellant in this appeal stands convicted in S.C.No.250/2005 on the file of the Court of Sessions, Salem under sections 302, 307 and 324 I.P.C., for which, he stands sentenced to undergo imprisonment for life together with a fine of Rs.1,000/-, carrying a default sentence; seven years rigorous imprisonment, together with a fine of Rs.1,000/-, carrying a default sentence and six months simple imprisonment respectively. Hence he is before this court in this appeal challenging his conviction. Heard Mr.K.V.Sridharan, learned counsel appearing for the appellant and Mr.N.R.Elango, learned Additional Public Prosecutor appearing for the State.
2. The prosecution case is that, at about 7.30 p.m on 14.01.2005, the accused, in the context of his prior enmity with the victim, fatally attacked Ragupathi resulting in his death and therefore triable under section 302 I.P.C. In the course of the same transaction, when the witnesses stepped in to intervene, he made an attempt on the life of P.W.2 and attacked P.W.4 and therefore triable under sections 307 and 324 I.P.C respectively. To prove their case, the prosecution examined P.Ws.1 to 21, besides marking Exs.P.1 to P.33 and M.Os.1 to 18. The defence neither let in any oral nor documentary evidence.
3. P.W.1 is a child witness. P.Ws.2 and 5 are the mother and father of P.W.1. P.Ws.2 and 5 are working in the agricultural land of Rakkiappa Gounder examined in this case as P.W.4. They were lessees. At about 7.30 p.m on 14.01.2005 when P.W.2 was selling short eats opposite to her house, P.W.1 and her younger sister were there taking some eats provided to them by their mother. At that time the deceased came there. P.W.2 asked the deceased as to whether he would like to have some food, for which, Ragupathy (since deceased) answered in the affirmative. Accordingly, P.W.2 started serving some food to Ragupathi (since deceased). At that time the accused came there and called all of them to the temple. They answered saying that as it is night time, P.W.1 and her younger sister would not come with him to the temple. The accused did not keep quiet but addressed P.W.2 stating that when she should serve food to all sundries, why not she serve food to him also. To this question, P.W.2 kept a total silence. Ragupathy (since deceased), who was already there, told P.W.2 that the accused is blabbering under the intoxication of liquor. The accused was angered at this and immediately he went to the land of P.W.4, from where, he came back with a knife and cut Ragupathy on the rear side of his head. At that time when P.W.2 asked the accused as to why he had done like that, the accused responded by cutting P.W.2 on her right hand and left side neck resulting in injuries to P.W.2. P.W.4 also stepped in questioning the accused on his act. The accused did not spare him also and cut him on his right hand. P.W.2 escaped and entering the house of P.W.4, bolted the door from inside. The accused challenged P.W.2 to come out stating that he would not spare her life and saying so, he kicked the door. Hearing the commotion, P.W.8 and others came. P.W.4 asked the witnesses to tie the accused. However the accused, criminally intimidating all the witnesses for about ten minutes, made good his escape. Thereafterwards, P.W.2, by opening the door, came out. All the injured were taken to the hospital. On receipt of the information, police arrived at the scene and by examining P.W.1, recorded her statement. After reading it over to her, her signature was obtained in it. Ex.P.1 is the said complaint. P.W.1 was examined by the Magistrate under section 164 of the Code of Criminal Procedure. Ex.P.2 is the said statement.
4. P.W.2 is the mother of P.W.1 and wife of P.W.5. Her evidence, on the assault perpetrated by the accused on Ragupathi; the attack made on her life and the assault on P.W.4 are on the same lines as spoken to by P.W.1. She would identify M.Os.2 and 3 as the blood stained blouse and blood stained saree, which she was wearing and they came to be recovered under a mahazar. She was examined by the Magistrate under section 164 of the Code of Criminal Procedure. Ex.P.3 is her statement. M.O.1 is the weapon used by the accused in inflicting injuries on Ragupathi (since deceased) and P.W.2. P.W.3 is another child witness and she is the younger sister of P.W.1 and daughter of P.Ws.2 and 5. Her evidence on the material aspects of the prosecution case is as spoken to by P.W.1. Ex.P.4 is her statement recorded by the Judicial Magistrate under section 164 of the Code of Criminal Procedure. P.W.4 is the landlord, in whose land P.Ws.2 and 5 are cultivating as lessees. He is the grandfather of the deceased as well. He found the accused and the deceased talking with each other on the occurrence day evening and immediately the accused, by picking up an aruval from the house of P.W.4, cut Ragupathi on his head. Ragupathi, after receiving the injury, ran to a distance and fell down. The accused had also cut P.Ws.2 and 4. M.O.1 is the weapon used by the accused. Ex.P.5 is the statement recorded by the Magistrate under section 164 of the Code of Criminal Procedure. P.W.5 is the husband of P.W.2 and father of P.Ws.1 and 3. He had only heard a commotion and then saw the accused making good his escape with the weapon of offence towards south. He witnessed the recovery of M.Os.2 and 3 under Ex.P.6. Ex.P.7 is his statement recorded by the Magistrate under section 164 of the Code. M.O.1 is the weapon used by the accused. P.W.6 is another witness, who, after hearing a commotion in the garden land of P.W.4, went to the crime scene, where, he found the accused challenging P.W.2 to come out of the house stating that he would not spare her life. Though P.W.4 tried to cool down the accused, yet, the accused proceeded to break open the door of P.W.4's house. P.W.4 asked the witnesses to tie the accused and on seeing the crowd, the accused made good his escape. Ex.P.8 is his statement recorded by the Magistrate under section 164 of the Code. P.W.7 is the wife of the deceased. When she was returning from the temple on the occurrence day evening, she heard a commotion in the garden land of P.W.4. When she turned that side, she found the accused kicking the door of P.W.4's house. Shouting that he would not spare Gunavathi/P.W.2, who was already inside the house, from being killed, the accused made good his escape. P.W.8 was also returning from the temple on the occurrence day evening and he noticed the accused armed with a weapon banging the house door of P.W.4 stating that if Gunavathi (P.W.2) comes out, he would kill her. On noticing the crowd gathering, the accused made good his escape.
5. P.W.20 is the Sub-Inspector of Police in the Investigating Police Station. At about 8.00 p.m on 14.01.2005, a person, without disclosing his identity, telephoned to him that the accused had murdered Raghupathy; attacked Gunavathi (P.W.2) and Rakkiappa Gounder (P.W.4). He made an entry in the general diary and then he proceeded to the crime scene accompanied by a police constable. He verified from the crime scene whether the information received by him is correct. Then by examining P.W.1, he recorded her statement. He came back to the police station and recorded that complaint as Ex.P.1 in Crime No.9/2005 under sections 302, 307 and 324 I.P.C. Ex.P.30 is the printed first information report. He sent the express records to the court as well as to the higher officials. P.W.21 is the Investigating Officer, who received the express records registered by P.W.20. He reached the crime scene at 00.45 a.m on 15.01.2005 i.e., on the intervening night of 14.01.2005 and 15.02.2005 and in the presence of witnesses, he prepared Ex.P.31, the rough sketch. From 2.15 a.m till 7.15 a.m., he conducted inquest over the dead body in the presence of panchayatdars and witnesses. Ex.P.32 is the inquest report. Then he sent the dead body with a requisition to the hospital for post mortem. During inquest, he examined P.Ws.1, 3, 4, 5 and others by recording their statements. He sent P.W.4 with a police medical memo to the Government Hospital at Mettur for treatment. At 7.20 a.m., from the place where the dead body was found lying, he recovered M.O.14 under a mahazar. At 8.00 a.m., from the place where Ragupathi came to be attacked, he recovered blood stained earth, sample earth and blood stained stone under a mahazar attested by the same witnesses. At 8.30 a.m., from opposite to the house of P.W.2, he recovered blood stained earth and sample earth under a mahazar. At 8.45 a.m., from near the house of P.W.4, he recovered blood stained earth and sample earth under a mahazar. By using a swab, he collected blood from the wound of P.W.4. He proceeded to the hospital by 12.00 noon and by examining P.W.2, he recorded her statement. He recovered a blood stained blouse and saree produced by her at that time in the presence of witnesses under a mahazar. All the case properties were sent to the court with a requisition to subject the same for chemical examination.
6. P.W.9 is the constable, who accompanied P.W.2 to the Government Hospital at Mettur for treatment. He observed the dead body of Ragupathi in the hospital. P.W.10 is the auto driver, in whose autorickshaw P.W.2 was taken to the Government Hospital at Mettur by P.W.9 and another. P.W.11 was the President of Chitrapatti Village Panchayat. On the morning of 17.01.2005, the accused appeared before him and confessed that he murdered Raghupathi at about 7.30 p.m on 14.01.2005 and also attacked Gunavathi and Rakkiappan (P.Ws.2 and 4), who tried to intervene. The accused also confessed that he had screened himself in the nearby hilly area; he came to know that Raghupathi is dead; going by his conscience and fearing police torture, he had appeared before P.W.11. On that, P.W.11 gave his report (Ex.P.9) to the Inspector of Police. He also witnessed the arrest of the accused and recording of his statement, the admissible portion of which is Ex.P.10.
7. P.W.12 is the duty Doctor in the Government Hospital at Salem. P.W.2 was referred to that hospital from the hospital at Mettur. P.W.2 was brought by P.W.9. He examined her and admitted her as an in-patient. Ex.P.11 is the accident register. Ex.P.12 is the accident register issued by the Government Hospital at Mettur. She got discharged against medical advice. P.W.13 is the duty medical officer in the Government Hospital at Mettur. At 11.00 or 11.30 a.m on 15.01.2005, P.W.4 appeared before him with a medical memo for injuries shown to have been sustained by him at 7.30 p.m on 14.01.2005. Ex.P.13 is the wound certificate issued by him. P.W.14 is another duty Doctor in the Government Hospital at Salem, before whom, P.Ws.1 and 3 were brought for examination as to whether they have reached the age of understanding things. He found both of them to be competent to understand what is happening around them. Ex.P.14 is the certificate issued by him for P.W.3 and Ex.P.15 is the certificate issued by him for P.W.1. P.W.15 is the duty Doctor, who, on receipt of Ex.P.16 (requisition) and the dead body, commenced post mortem on the dead body at 2.15 p.m on 15.01.2005. During post mortem, he found various symptoms as noted by him in Ex.P.17, the post mortem report. The symptoms noted by him are as hereunder:
"Injuries:
1) Abrasion on left deltoid region 7.5 x 0.5 cms.
2) Gapping curved cut injury of right tempro parieto occipital region of scalp 20 x 4 x 3.5 cms cavity deep.
3) Cut fracture of right tempro parietal bone 18 x 3 cms cavity deep.
4) Cut injury of dura torn 4 x 3 cms.
5) Cut injury on brain 4 x 3.5 cms on right temporal lobe.
6) Fracture of right zygoma present.
7) Sub-dural and sub-arachnoid haemorrhage over the right temporal cerebral hemisphere of brain (antimortem).
Heart: Chambers and valves normal. Cavities empty. Coronary Vessels: Patent. Great Vessels:
Normal. Lungs: Both on C/s pale. Hyoid bone:
Intact. Stomach: Contained 300 gms of partly digested cooked food with no specific smell. Mucosa pale. Small intestine: Yellowish chyme. No specific smell. Mucosa pale. Liver, Spleen and Kidneys: All are C/s pale. Bladder: Empty.
Pelvis, Membranes spinal column: All are
intact."
Doctor opined that death would have occurred 12 to 24 hours prior to autopsy as a result of shock and haemorrhage due to head injuries. A weapon like M.O.1 could have caused the injuries noted by him on the dead body.
8. P.W.21 continued his investigation further by examining witnesses and recorded their statements. P.W.11 produced the accused before him on 17.01.2005 with his report. P.W.21 examined the accused at that time and the accused gave a voluntary confession statement. Ex.P.10 is the admissible portion of the confession statement of the accused. Pursuant to the same, various incriminating objects came to be recovered at his instance. The case properties and the accused were brought to the police station. Then, the accused was sent for judicial remand and the case properties were sent to the court with a requisition to subject the same for chemical examination.
P.W.16 is the Assistant Engineer of Tamil Nadu Electricity Board during the relevant time and in-charge of the occurrence village. He would depose that from 6.00 p.m on 14.01.2005 till 6.00 a.m on 15.01.2005, there was no power disruption. Ex.P.18 is the report given by him. Ex.P.19 is the copy of another official record to show that there was continuous power supply. P.W.17 witnessed the preparation of Ex.P.20, the observation mahazar; recovery of M.Os.4 and 5 under Ex.P.21; recovery of M.Os.6 and 7 under Ex.P.22; recovery of M.Os.8 and 9 under Ex.P.23 and recovery of M.Os.10 and 11 under Ex.P.24 as already spoken to by P.W.21. P.W.18 witnessed the examination of the accused; recording his confession statement, the admissible portion of which is Ex.P.10 and recovery of M.Os.1, 12 and 13 under Ex.P.25 as already spoken to by P.W.21. P.W.19 is the court staff, who speaks about the receipt of the case properties along with Ex.P.26 (requisition) given by the Inspector of Police. As an enclosure to Ex.P.27, the case properties were sent to the laboratory. Ex.P.28 is the serologist's report. The constable present during post mortem removed M.Os.15 to 18 from the dead body and handed over the same to the Investigating Officer, who recovered the same under Form 95. After completing the investigation, P.W.21 filed the final report in court against the accused on 14.02.2005 under sections 302, 307 and 324 I.P.C.
9. When the accused was questioned under section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against him, though he denied the materials placed against him as false and contrary to facts, yet, in the written statement filed by him, he had admitted his involvement but explained his act as due to provocation. We summarise hereunder the contents of his written statement:
"On the occurrence day night when I was on my way to the house, I noticed P.W.2's children taking some food outside P.W.2's house; therefore I also went there; as I was talking to P.W.2 and others, the deceased sarcastically commented that I am blabbering under the intoxication of liquor; out of anger, I took a weapon lying nearby and cut Ragupathi; the nearby persons also received injuries; I went home; my house door was broke open; I was pulled out and lodged in the prison; I have no enmity with the deceased; I had never any intention to kill him; even on the occurrence day, the deceased called me as a deaf person blabbering under the intoxication of liquor; therefore, in a fit of anger, I attacked him; I have no enmity against P.Ws.2 and 4; I had no intention to injure them; during the occurrence time, I was aged 38 years; a coconut fell from the tree on my head four or five years before, affecting my hearing ability to a considerable extent; the deceased is my neighbour in residence; whenever people from outside the village had visited my house proposing their daughter in marriage to me, the deceased had always told them very bad about me saying that I am deaf, a crack and a mentally sick person; therefore they could not give their daughter in marriage to me; because of the abuses of the deceased, nobody came forward to give their daughter in marriage to me; the deceased was behaving like this for several years by telling those who come to my house and thus prevented my marriage from taking place; on the occurrence day, I had taken liquor and when the deceased called me as a deaf person blabbering under the intoxication of liquor, I was annoyed and therefore I cut him."
Written argument was filed on behalf of the accused before the lower court and in the written argument also, the accused had pleaded not only the facts as narrated by him in the written statement but also pleaded that his act may fall under section 304-II I.P.C as far as the death of Raghupathi is concerned.
10. Mr.K.V.Sridharan, learned counsel appearing for the appellant, going by the written statement of the accused filed at the end of his questioning and the written argument filed on his behalf by his counsel before the lower court, would fairly state that he is confining his argument only to the extent of brining the act of the accused under Exception 1 to section 300 I.P.C. In other words, learned counsel for the appellant is not disputing his client's involvement in the crime. Appreciating the fairness in the submission made by the learned counsel as stated above, which would save a lot of judicial time, we proceed to analyse the case only from the angle argued by the learned counsel for the appellant. Before doing that, we conclude that the medical evidence available in this case establishes beyond doubt that death of Raghupathi is due to homicidal violence, the accused made an attempt on the life of P.W.2 and P.W.4 sustained simple hurt at the hands of the accused. The sheet anchor of the submission made on behalf of the accused to bring his act under Exception 1 to section 300 I.P.C is the continuous nagging and harassment by the deceased in sarcastically commenting the accused in his various facets of life. The sum and substance of the defence is that the deceased, at all times, used to make fun of the accused describing him as a deaf person; whenever a chance arises, he would call him as a drunkard and the deceased was putting a spoke in the accused getting married by telling all those who come to see the groom namely, the accused, in his house that the accused is a man of bad character; a deaf person; a drunkard and he is having connection with innumerable women. This is the stand of the accused in his written statement filed as well as in the written argument.
11. Let us now find out whether this stand of the detenu is supported by evidence on record. P.W.21 is the Investigating Officer. He was cross examined by the defence with reference to the statements of witnesses given earlier during investigation. He had categorically admitted in such cross examination as hereunder:
"P.W.5 during investigation stated that the accused told him that he is yet to be married; his marriage getting postponed is solely due to the deceased in this case; the accused also told P.W.5 that whenever the bride's family came to his house to see him, the deceased had prevented the marriage being put through by telling the bride's family that the accused is a deaf person and that he is short of hearing. P.W.6, during investigation, had stated that the accused complained to him that he is not getting married and in all the places where brides are available, they refused to give him their daughter and Raghupathi - since deceased is solely responsible for this. P.W.6 had also stated during investigation that the accused told him that Raghupathi is carrying tales to the brides' family about the accused by telling them that he is deaf and that he cannot hear. P.W.7 is none else than the wife of the deceased. She had also stated during investigation that the accused told her that whenever bride's family came to his house for fixing him as the groom, the deceased had always condemned the accused as the person of bad character, a deaf person, drunkard and he has illicit intimacy with all the girls coming for coolie work; he is a crack and so saying, his marriage proposals were thwarted. P.W.8 had also disclosed during investigation that the accused was lamenting that he is not getting married and the cause is Raghupathi telling everybody that the accused is deaf, mad, drunkard and that he is having illicit affairs with all ladies who come for coolie work."
Therefore, even during investigation, the above referred to witnesses disclosed that the accused was having a grouse against the deceased that he is the one who stands in between the accused and his proposed marriage.
12. We looked at the evidence of the witnesses. P.W.5 in his cross examination had admitted that he had given such a statement as elicited in the cross examination of P.W.21. P.W.7 had also admitted such a statement having been given by her during investigation. P.W.8 also had admitted that he had given such a statement. Therefore we have no doubt at all that the accused might have had constant strain and tension in his mind that he would not get married solely due to the questionable activities of the deceased describing the accused as a person of bad character with a disability and not a fit one to get married. Even at the occurrence time when the accused was addressing P.W.2 that when she can serve food to all sundries why not she serve food to him, the deceased immediately stated to P.W.2 as hereunder:
"The deaf person is blabbering under intoxication of liquor."
In the context of the other materials available on record, this statement made by the deceased at the time of occurrence is definitely meant only for the accused and cannot be for anybody else. P.W.1's evidence is that, immediately the accused was angered and attacked him by picking up the weapon available in P.W.4's land. P.W.2's evidence is also on the same lines. P.W.2's evidence as to what the deceased stated at that time is as spoken to by P.W.1. So is the statement of P.W.3. Therefore it is clear that the accused not only had a sudden provocation just at the nick of time when he committed the crime but he was also having a sustained provocation for a long time. A Division Bench of this court in the judgment reported in 1972 L.W.Crl.Pg.34 (Vadivel Padayachi In re.) had laid down very clearly as to what should be the approach of the court in a given case, if provocation is put up as the defence and it is as follows:
"A hyper-sensitive person, who loses his power of self-control at the slightest provocation would not be entitled to the benefit of the Exception to section 300 I.P.C. Deprivation of the power of self-control must be the result of provocation, which is both sudden and grave. Provocation is an external atimulus which can be objectively gauged. But, loss of self-control is a subjective phenomenon which is difficult to divine. To peep into the mind of the accused as it was at the relevant time is seldom possible. The state of his mind can only be inferred from the surrounding circumstances, from the manner in which he reacted to the circumstances, and most important of all, from his own description of the state of his mind. His description of his subjective condition may be true or false, but the truth or falsity of his description is fortunately susceptible of verification with reference to relevant objective facts. Before embarking upon the process of such verification, the court must imaginatively reconstruct the psychological situation in which the accused found himself whilst he committed the crime in question and judge his behaviour unhampered by any inflexible rule of thumb."
13. With great respect and without any hesitation, we subscribe our view to the above proposition of law. As said by the Hon'ble Judges, it would be impossible for any court or even for any human being to read the mind of another human being. The argument advanced by Mr.N.R.Elango learned Additional Public Prosecutor that on the established facts as stated above namely, the deceased always nagging the accused on all possible occasions by describing him as stated earlier would not be sufficient to constitute either sudden or sustained provocation and therefore the benefit of Exception 1 to section 300 I.P.C cannot be given to the accused, does not really appeal to us at all, if we consider his argument in the light of the judgment of this court referred to supra. As said in the judgment, we are also of the view that it would be impossible to read the human mind. It is impossible to judge as to how one would act and respond to a given situation and it is not possible to catalogue the circumstances, which alone would constitute sudden or sustained provocation as it would depend on facts available in each case. The argument of the learned Additional Public Prosecutor that it is not as though the deceased made character assassination of the accused only on that day when the crime was committed but from the evidence it can be seen that the accused was subjected to character assassination by the deceased for a long time and therefore from that angle if the defence is examined, it must fail the test of Exception 1 to section 300 I.P.C. We may state here in answer that a Division Bench of this court in the judgment reported in 1972 L.W.Crl.Pg.86, found that though Exception 1 to section 300 I.P.C speaks only sudden provocation, yet, found the theory of sustained provocation also would be comprised within the phrase "sudden provocation" and gave the benefit of that concept i.e., sustained provocation, same to the accused in that case on the facts noted therein. As stated above by us earlier, facts will never be similar in two cases. Therefore how far the theory of sustained provocation can be extended to an accused facing trial under section 302 I.P.C would vary from case to case depending upon the facts available. To the present accused, his thought that his marriage possibility is getting bleak day-in and day-out at the behest of the deceased cannot be said to be a wholly unjustified material to provoke him. If we accept the argument of the learned Additional Public Prosecutor that if in a given case the accused put up for trial for the offence under section 302 I.P.C had been at the receiving end for quite a long time and yet he did not react at all but had reacted only on the occurrence day and therefore Exception 1 to section 300 I.P.C cannot be extended to him, then we have no doubt at all that we would be unsettling law laid down by this court in the judgment referred to supra i.e., 1972 LW (Crl.) Pg.86 followed consistently thereafter till now by this court. In other words, we do not want to unsettle the law, which has stood the test of time over a period of 35 long years. On the facts noted above, we find that the accused had not only sustained provocation but also was ignited on the occurrence day just at the nick of time by the deceased once again repeating his nagging attitude by commenting on the disability of the accused. This, in our opinion, definitely attracts Exception 1 to section 300 I.P.C and therefore his conviction under section 302 I.P.C cannot be legally sustained. However the accused cannot escape the clutches of law for murdering the victim as his act can be brought under section 304 - Part I I.P.C. There is legal evidence to sustain his conviction under sections 307 and 324 I.P.C namely, for making an attempt on the life of P.W.2 and for causing injuries on P.W.4. Accordingly, the appeal stands disposed of on the following lines:
"The accused is acquitted of the offence under section 302 I.P.C and instead, he is found guilty under section 304 - Part I I.P.C, for which, he would stand sentenced to undergo seven years rigorous imprisonment. The fine amount, if any, imposed on him for his conviction under section 302 I.P.C is maintained for his conviction under section 304 - Part-I I.P.C. The conviction and sentence imposed on the accused for offences under sections 307 and 324 I.P.C are sustained."
vsl To
1.The Principal Sessions Judge, Salem
2.The District Collector, Salem
3.The Director General of Police, Chennai
4.The Public Prosecutor, High Court, Chennai
5.The Superintendent, Central Prison, Coimbatore
6.The State represented by the Inspector of Police, Kolathur Police Station, Salem District