Madras High Court
P.Alagusamy vs State Rep. By on 1 March, 2012
Author: P.Devadass
Bench: N.Paul Vasanthakumar, P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/03/2012 CORAM THE HONOURABLE Mr.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE Mr.JUSTICE P.DEVADASS Criminal Appeal (MD) No.221 of 2011 P.Alagusamy ... Appellant/Accused Vs. State rep. by The Inspector of Police, Keela Rajakularaman Police Station in Cr.No.94 of 1989, Virudhunagar District. ... Respondent/Complainant Prayer Appeal filed under Section 374 of Criminal Procedure Code to set aside the judgment of the learned Principal Sessions Judge, Virudhunagar District at Srivilliputtur, in S.C.No.40 of 1998 by his judgment dated 29/08/2005, and acquit the appellant from the charges. !For Appellant ... Mr.E.Somasundaram ^For Respondent ... Mr.K.S.Durai Pandian, Additional Public Prosecutor :JUDGMENT
P.DEVADASS ,J.
1. Appellant Alagusamy, who is A3 in crime No.94 of 1989 of Keela Rajakularaman Police Station was tried in Sessions Case No.40 of 1998 before the learned Principal Sessions Judge, Virudhunagar Sessions Division at Srivilliputhur for offences under Sections 341 and 302 r/w 34 I.P.C. was acquitted under Section 341 I.P.C., but convicted under Section 302 I.P.C. and was sentenced to life.
2. Let us narrate the case of the prosecution in brief as under:
(i) A.1 Perumal married Veerammal, sister of Veeran (deceased). A.2 Muthusamy and appellant Alagusamy (A3) are their sons. Veeran's daughters are Veerammal (P.W.2) and Chellammal. They lived in Thirukothayapuram @ Sangampatti in Rajapalayam Taluk in Viruthunagar District. P.W.1 Kadarkarai married Chellammal. He is residing with his wife in the nearby Appanur village. A.1's wife passed away.
(ii) Under an arrangement, after receiving a certain sum of money, Veeran left his 81 cents of land in the possession of A.1. When he demanded back his property, A.1 refused. Property dispute arose between both. They fought in the Courts in Srivilliputhur, Madurai and Madras. Finally, Veeran won.
(iii) After the civil case was over, in Chathirapatti, once, appellant had beaten Veeran. A criminal case was given. Appellant was fined. Thus, this 81 cents of property divided Perumal and Veeran, so also their families.
(iv) On 23.04.1989, at about 8 a.m., Veeran, P.Ws.1 and 2 have ploughed the said land. At that time, A.1, A.2 and the appellant came and quarreled with them. Appellant retorted that by evening let him teach a lesson. Then they have left.
(v) At about 6 p.m., Veeran, P.Ws.1 and 2 after taking tea in P.W.3 Kayambu Naicker's tea shop, situate on the Rajapalayam - Alangulam Road, proceeded on the road towards east, crossed about 10 feet, A.1, A.2 and the appellant came from the Southern side. A.1 directed his sons to 'cut them'.
Appellant stabbed Veeran on the left side of his chest with a Soori knife and on his left elbow. Thereafter they ran away. Veeran fell dead. The whole occurrence was witnessed by P.Ws.1 and 2.
(vi) At about 7 p.m., at the Keela Rajagula Raman Police Station, P.W.1 gave Ex.P.1 complaint to Jeyaraj, Sub-Inspector. He registered a case in Crime No.94 of 1989 under Sections 341 and 302 I.P.C. Ex.P.10 express F.I.R. was handed over to the Magistrate in Srivilliputhur on the same day.
(vii) At about 9 p.m., Abdul Sathar, Inspector, Rajapalayam Taluk Police Station, received a copy of the F.I.R. At about 9.30 p.m., at the scene-place, in the presence of P.W.6 Muniasamy, V.A.O., Mela Rajagularaman and his Assistant Thangaraj, prepared Ex.P.6 Observation Mahazar. Drew Ex.P.11 rough-sketch. Between 10 p.m. to 12 p.m., in the presence of Panchayatars, held inquest over the dead body. (Ex.P.12 Inquest Report). Under Ex.P.7 Mahazar, the Investigation Officer recovered blood-stained sand (M.O.3) and plain-sand (M.O.4). He sent the dead body to Govt. Hospital, Rajapalayam with Ex.P.8 requisition to conduct postmortem.
(viii) P.W.7 Dr.Dhanalaksmi, on 24.04.1989, at about 7 p.m., at the said hospital, conducted autopsy and found the following external injuries:
1. A lacerated injury of 2" x 1" x 1" in the left elbow present.
2. A stab wound of about 2 1/2 x 1 1/2 x 2" in the left side of chest about 1" from middle line in between 3rd and 4th ribs present. Blood clots below muscle layers present. Intercostal muscles lacerated.
(ix) P.W.7 issued Ex.P.9 postmortem certificate opining that the deceased would appear to have died of shock and injury to vital organ (heart).
(x) After postmortem, blood-stained Turkey towel (M.O.1) and Dhothi (M.O.2) were recovered from the dead body and were handed over to the Investigation Officer.
(xi) On 09.05.1989, at about 8 a.m., at the Reddiarpatti bus stop, in the presence of Muthiah and Ponniah, the Investigation Officer arrested A.1 and A.2. Appellant had absconded. The Investigation Officer re-examined P.W.7 and obtained postmortem certificate. Concluding his investigation, he filed the Final Report for offences under Section 341 and 302 IPC against A.1, A.2 and the appellant.
3. Since, the appellant had absconded, the committal Court separated the case of A.1 and A.2 and committed it to the Court of Sessions, Srivilliputhur. They were tried in Sessions Case No.14 of 1992 and A.1 was convicted under Sections 341 and 302 read with 109 I.P.C., while A.2 was convicted under Sections 341 and 302 read with 34 I.P.C. and they were awarded life sentences and other sentences.
4. They have challenged their conviction and sentences before the Main Bench of this Court in Crl.A.No.716 of 1992. On 04.06.2002, a Division Bench of this Court partly allowed the appeal, acquitting A.2 from both the charges and acquitted A.1 from the charge under Section 341 I.P.C., however, converted his conviction under Section 302 read with 109 I.P.C. to 326 read with 109 I.P.C. and sentenced him to 7 years rigorous imprisonment.
5. Subsequently, on appellant being apprehended, the learned Judicial Magistrate No.III, Srivilliputhur committed his case to the Court of Sessions. He was tried in Sessions Case No.40 of 1998 before the Principal Sessions Judge, Srivilliputhur for charges under Sections 341, 302 read with 34 I.P.C.
6. To prove the charges, prosecution examined P.Ws.1 to 8, marked Ex.P.1 to 12 and exhibited M.Os.1 to 4.
7. When questioned under Section 313 Cr.P.C. on the incriminating aspects to prosecution evidence, the appellant denied his complicity in this case. He did not let in any evidence.
8. On appreciating the said evidence, the trial Court accepted the evidence of the eyewitnesses, namely, P.Ws.1 and 2 and also other aspects of the case and acquitted the appellant from the charge under Section 341 I.P.C., however, convicted him under Section 302 I.P.C. and sentenced him to life.
9. Mr.E.Somasundaram, learned counsel for the appellant submitted that prosecution has not established its case beyond all reasonable doubts.
10. The learned counsel elaborated his arguments as under:
(i) P.Ws.1 and 2 are closely related to the deceased. They are highly interested witnesses. Their very presence at the scene of crime is doubtful.
(ii) No independent witness has been examined. Independent witnesses cited in the Final Report has been avoided in the witness box.
(iii) The Soori knife stated to have been used by the appellant has not been seized and produced.
(iv) P.W.7 the postmortem doctor admitted that she was not examined showing the knife.
(v) However, in her evidence, P.W.2 states that on the next day of the occurrence, police shown her the knife with which appellant had killed her father.
(vi) In her cross-examination, P.W.2 would say that within 10 minutes of the occurrence, police came to the spot and obtained her signature in an unfilled paper.
(vii) Near the dead body, heap of jalli stones were shown in Ex.P.11 sketch map. Injury No.1 is lacerated injury on the left elbow of the deceased.
So, the deceased having sustained the injuries in a different manner, cannot be ruled out.
(viii) Witnesses to Ex.P.4 and P.5, Chemical Analysis Report and Serological Report were not examined. This is fatal to the prosecution case.
11. In support of his submissions, the learned counsel for the appellant cited the following decisions:
(1) HEM RAJ Vs. STATE OF HARYANA [AIR 2005 SC 2110].
(2) ARUMUGAM Vs. STATE [(2001) M.L.J. (Crl.) 801].
12. The learned counsel for the appellant also argued alternatively. Even for an argument sake, if the appellant is held to have stabbed Veeran to death, in the facts and circumstances, it would not fall under Section 302 I.P.C. It would only fall under Section 304 part I I.P.C. as already there was land dispute between both sides. Suddenly the occurrence had taken place. In this respect, the learned counsel cited P.MUTHUPANDI Vs. STATE [(2011) 4 MLJ (Crl) 193].
13. On the other hand, Mr.K.S.Duraipandian, the learned Additional Public Prosecutor would submit as under:
(i) Merely because P.Ws.1 and 2 are closely related to the deceased, their cogent and clear cut evidence cannot be discarded.
(ii) On account of non-production of the weapon alone the prosecution case cannot be faulted, when the nature of the weapon used at the time of occurrence has been proved by the eye-witnesses and corroborated by the medical evidence.
(iii) No reliance is placed on Ex.P.4 and P.5. In this case, in the circumstances, there is no need to refer to Sections 293 and 294 Cr.P.C. So, ARUMUGAM Vs. STATE [(2001) M.L.J. (Crl) 801] is not applicable to the facts of this case.
(iv) The appellant came to the spot predetermined and also armed. There was no provocation from the deceased, yet, the appellant stabbed him on his chest with a knife and the injury was very deep and the deceased died instantaneously. Therefore, it is a clear case of culpable homicide amounting to murder. In the circumstances, MUTHUPANDI case cited supra is distinguishable on facts.
(v) Thus, the prosecution has clearly established the murder charge against the appellant beyond all reasonable doubts. So, he has been rightly convicted and sentenced.
14. We have anxiously considered the rival submissions, scanned through the recorded evidence and other relevant materials on record and perused the decisions cited at the bar.
15. Deceased Veeran and A.1 Perumal are brother-in-laws. A.1 married Veeran's sister Veerammal. Appellant is a son of Veerammal. The deceased is uncle to the appellant. They are residing in Kothaiapuram @ Sangampatti in Rajapalayam Taluk in Viruthunagar District. On 23.04.1989, at about 6 p.m., just 10 feet away from P.W.3 Kayambu Naicer's Tea Stall, Veeran was found dead with injuries.
16. The stab wound on the left side of his chest was so deep (injury No.2) that it pierced the pericardium. Veeran died due to shock and injury to his heart. It is a clear case of homicidal death. This has not been/could not be disputed by the appellant.
17. This case is based on the evidence of eye-witnesses. They are P.Ws.1 and 2. P.W.1 Kadarkarai is son-in-law of the deceased Veeran. He married Veeran's second daughter Chellammal. P.W.2 Veerammal is the eldest daughter of the deceased.
18. The defence had mainly attacked the evidence of P.Ws.1 and 2 as they are closely related to the deceased.
19. In SARWAN SINGH v. STATE OF PUNJAB, [1976 (4) SCC 369], the Hon'ble Apex Court, while considering the evidence of an interested witness held as follows:
"10. . it is not the law that the evidence of an interested witness should be equated with that of a tainted [witness] or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of the interested [witness has] a ring of truth such evidence could be relied upon even without corroboration."
20. The fact of being a relative cannot by itself discredit the evidence. In the above said case, the witness relied on by the prosecution was the brother of the wife of the deceased and was living with the deceased for quite a few years. In the circumstances, in SARWAN SINGH (supra) at page 379, the Hon'ble Supreme Court held as follows.
"16. . But that by itself is not a ground to discredit the testimony of this witness, if it is otherwise found to be consistent and true."
21. In BALRAJE v. STATE OF MAHARASHTRA [(2010) 6 SCC 673], the Hon'ble Supreme Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. After saying so, the Hon'ble Apex Court held as under.
"30. . if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same."
22. In PRAHALAD PATEL V. STATE OF M.P. [(2011) 4 SCC 262], the Hon'ble Supreme Court held that: (SCC p. 265) "15. . Though PWs 2 and 7 are brothers of the deceased, relationship is not a factor to affect credibility of a witness. In a series of decisions this Court has accepted the above principle (vide Israr v. State of U.P., (2005) 9 SCC 616 and S. Sudershan Reddy v. State of A.P., (2006) 10 SCC 163)."
23. In DALIP SINGH AND OTHERS Vs. STATE OF PUNJAB [AIR 1953 SC 364], it has been laid down as under:-
"Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
24. In ARUMUGAM Vs. STATE REP. BY INSPECTOR OF POLICE, TAMIL NADU (2009 I MLJ (CRL.) 48 (SC) the Hon'ble Supreme Court opined that the plea relating to interested witness is a regular feature in almost every criminal trial and observed as under:
"Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."
25. In the case before us, in the Final Report, apart from P.Ws.1 and 2 police cited Kayambu and Bose as witnesses, whose names also figure in the F.I.R. Kayambu has been examined as P.W.3 in the Court. However, in the court, he has resiled from his previous police statement.
26. Bose has not been examined in the Court. Much criticism has been made on the non-examination of independent witness. Non-examination of the said Bose has been commented upon by the defence.
27. It is apposite here to note the observations of our Hon'ble Supreme Court made in BADRI Vs. STATE OF RAJASTHAN [AIR 1976 SUPREME COURT 560], which runs as under:
"Since under the Evidence Act no particular number of witnesses are required for the proof of any fact, it is a sound and well-established rule of law that quality and not quantity of evidence matters. In each case the Court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witnesses for the purpose of convicting a person."
28. In this connection, it is relevant to note the following observations of the Hon'ble Apex Court made in MAHESH Vs. STATE OF M.P. [2011 (3) SCC (Cri) 783]:
"The prosecution has examined at least three eyewitnesses to the occurrence of the incident who have stated as to how the incident had happened. They have also stated the different and various, roles played by the accused person. Since the eyewitnesses were available and examined, there was no necessity of examining any other witness, inasmuch as, there is no necessity for the prosecution to multiply witnesses to prove and establish the prosecution case. There is no requirement in the law of evidence that any particular number of witnesses is to be examined to prove something. The evidence has to be weighed and not to be counted. The witnesses who were examined were relatives of the deceased and, therefore, there is no ground and reason why they should be disbelieved. There is also no reason why they would not speak the truth so as to see that the actual guilty persons are convicted."
29. In GOSU JAYARAMI REDDY Vs. STATE OF A.P. [2011 (3) SCC (Cri) 630], the Hon'ble Apex Court observed as under:
"It is well settled that every witness that the prosecution may have listed in the charge-sheet need not be examined. It is entirely in the discretion of the Public Prosecutor to decide as to how he proposes to establish his case and which of the listed witnesses are essential for unfolding the prosecution story. Simply because more than one witnesses have been cited to establish the very same fact is no reason why the prosecution must examine all of them."
30. In NIRPAL SINGH Vs. STATE OF HARYANA [1977 SCC (Cri) 262] the Hon'ble Supreme Court stated the principles as under:
"16. . The real question for determination is not as to what is the effect of non-examination of certain witnesses as the question whether the witnesses examined in court on sworn testimony should be believed or not. Once the witnesses examined by the prosecution are believed by the court and the court comes to the conclusion that their evidence is trustworthy, the non-examination of other witnesses will not affect the credibility of these witnesses. . it is not necessary for the prosecution to multiply witnesses after witnesses on the same point. In the instant case, once the evidence of the eyewitnesses is believed, there is an end of the matter."
31. To the same effect are the decisions of the Hon'ble Apex Court in STATE OF U.P. Vs. HAKIM SIGNH [1980 SCC (Cri) 534, NANDU RASTOGI Vs. STATE OF BIHAR [2003 SCC (Cri) 177], HEM RAJ Vs. STATE OF HARYANA [2005 SCC (Cri) 1646], STATE OF M.P. Vs. DHARKOLE [2005 SCC (Cri) 225] and RAJ NARAIN SINGH Vs. STATE OF U.P. [2010 (1) SCC (Cri) 327].
32. So from a survey of above case-laws, it is clear that in a case based on the evidence of eye witnesses, if the evidence of such witness is cogent, clear and reliable, merely because they are related to the deceased or apart from them, no independent witness has been examined that the Court should not place reliance on their evidence since they are interested witnesses cannot be accepted.
33. Now, let us proceeded to appreciate and assess the ocular testimony of P.Ws.1 and 2 Kadarkarai and Veerammal.
34. The occurrence was on 23.04.1989, at about 6 p.m., 10 feet away from P.W.3 Kayambu Naicker's Tea Shop, on the eastern side of Rajapalayam - Alangulam Road. Deceased Veeran, P.Ws.1 and 2 are not strangers to the appellant and to A.1 and A.2. They are well known to each other. It is the evidence of P.W.1 that the appellant along with his father Perumal (A.1) and brother Muthusamy (A.2) came there and on the direction of his father, appellant had stabbed the deceased on his left chest with a soori knife and thus took away his life.
35. P.W.2 also stated that she had witnessed the appellant stabbing her father. Cross-examination of P.W.1 shows that at about that time, near the tea stall light was burning.
36. P.Ws.1 and 2 were categorical that they have witnessed the occurrence at close by. Both have stated that the appellant have stabbed the deceased on his chest. Injury No.2 found on the person of the deceased corresponds to that. The oral evidence of P.Ws.1 and 2 stand corroborated by the medical evidence of P.W.7, Dr.Dhanalakshmi, who performed autopsy on the dead body.
37. Though in a case based on the evidence of eyewitnesses motive is not necessary, but, in this case there is motive also.
38. Already bad blood was brewing between both sides with regard to 81 cents of lands of Veeran situate in Sangampatti with regard to this property they fought in many courts and ultimately Veeran won the case and the land was in his enjoyment and it was disliked by A.1 to A.3.
39. That apart, after the civil case was over, near Chathirapatti, once, appellant beaten the elderly Veeran. As to this, criminal Court had fined the appellant.
40. Even on the occurrence day, at about 8 a.m., when the deceased and P.Ws.1 and 2 were ploughing the land, appellant, A.1 and A.3 troubled them. Appellant, A.1 and A.2 have eyed on Veeran's property. This prior motive and prior incident lends assurance to the evidence of P.Ws.1 and 2 and the prosecution case.
41. The specific case of the prosecution is that the appellant stabbed the deceased with a soori knife. Injury No.2 was on the left chest of the deceased. It was deep and it has pierced his heart. The intercostal muscles lacerated. It is because after having violently stabbed the deceased, the appellant had took out the knife fastly from Veeran's chest and ran away.
42. In this case, the weapon of offence used to stab the deceased is stated to be a soori knife. In the cross-examination, the Investigation Officer admitted that the weapon was not seized. So, there is no occasion for the Investigation Officer to show it to the doctor, P.W.7 and examine her as to the injury found on the person of the deceased.
43. It is not the law or the rule that in a criminal case, if the weapon used in the commission of crime is not produced, prosecution case has to be rejected. There are instances, where the weapon of offence could not be recovered. For instance, the accused may throw away the weapon into a lake, into sea and it could not be retrieved or in some cases, the accused may ran away with the weapon and destroy it. In such circumstances, the prosecution can show the type and nature of the weapon used in the commission of the offence by cogent and acceptable evidence.
44. P.Ws.1 and 2 were categorical and clear in their evidence that the deceased was stabbed with a knife. P.W.7 did not rule out the possibility of injury No.2 found on the chest of the deceased having been caused by a knife. In his cross-examination P.W.1 had clearly stated that after stabbing the deceased the appellant ran away with the knife.
45. Of course, in her cross-examination, P.W.2 had stated that on the next day, after the occurrence, police shown her a knife and she told them that that has been used to stab her father. A stray sentence snatched from her mouth as against the reality of the situation will not efface the overwhelming evidence that the deceased has been stabbed with a knife. In the circumstances, in our opinion, the fact of non-recovery of the weapon does not enure to the benefit to the accused.
46. Ex.P.4 Chemical Analysis Report and Ex.P.5 Serological Report are based on the analysis of blood stains of the deceased in M.Os.1 and 2 Turkey Towel and Dhothi and M.O.3 blood stained sand recovered from the scene-site. The chemical analyst and Serologist have not been examined. By Exs.P.4 and P.5 no incriminating circumstance has been pressed in to service. Above all, the deceased having suffered homicidal death is beyond pale of any controversy.
47. It is relevant here to note that in MUKUL MAHTO Vs. STATE OF JHARKHAND [2008 (15) SCC 648], the Hon'ble Apex Court has held that the non-examination of doctor, who had examined the deceased is not fatal, since homicidal death has not been disputed.
48. In ARUMUGAM Vs. STATE [(2001) M.L.J. (Crl.) 801], relied on by the learned counsel for the appellant, the skull of the deceased has been examined by superimposition test and the Forensic Expert gave report and it was marked as Ex.P.34. However, the Expert was not examined in the Court. In that context the Court held that without formal proof of the said document as provided in Sections 293 and 294 Cr.P.C. the Forensic Expert's report would not be a document within the meaning of Sections 293 and 294 Cr.P.C., because only on examining the Forensic Expert the defence would be in a position to cross- examine him with regard to the report. Therefore, in the circumstances, the court held that the said Report could not be considered a substantial piece of evidence.
49. As we have already seen, Ex.P.4 and P.5 are not such reports in our case and based on that no reliance or incriminating circumstances was pressed into service and the homicidal death also has been clearly established. Thus, ARUMUGAM case cited supra is not applicable to the facts of our case.
50. The stabbing incident took place on 23.04.1989, at about 6 p.m. near P.W.3's tea-shop on the Rajapalayam - Alangulam Road. Keela Rajakularaman police station is at a distance of 4 1/2 k.m. On the same day, at about 7 p.m., P.W.1 lodged Ex.P.1 complaint at the police station. On 24.04.1989, at the Govt. Hospital, Rajapalayam. P.W.7 conducted post-mortem. In her cross-examination, P.W.2 had stated that the dead body of her father was sent to hospital and at the hospital police enquired her and P.W.2 and have obtained their signatures in a white paper. So, police enquired them on 24.04.1989. But the F.I.R. was lodged on 23.04.1989 itself. She did not say nothing was written in the paper nor it was blank. Further, that is also not a material aspect affecting the prosecution case. Thus, there is no delay in lodging the F.I.R. and it is not doubtful.
51. From the above, it is seen that the presence of P.Ws.1 and 2 at the scene of occurrence at the occurrence time cannot be doubted and they having witnessed the occurrence has been clearly spoken to by them, which is cogent, convincing and natural. Further, motive, medical evidence also lends assurance to their evidence. So, we accept their evidence.
52. Thus, the prosecution has established beyond all reasonable doubts that the appellant had stabbed his uncle Veeran to death.
53. Let us now see, the alternative argument made by the learned counsel for the appellant.
54. According to the learned counsel for the appellant, the act of the appellant will be 'culpable homicide not amounting to murder' under Section 304 part I I.P.C. and not 'murder' under Section 302 I.P.C.
55. It is axiomatic that "all murders are culpable homicide, but not vice versa", that is to say, all murders are not culpable homicide. Culpable homicide is genus of which murder is species.
56. A culpable homicide falling under any one of the three classes, namely, 2ndly, 3rdly and 4thly amounts to murder. It is punishable under Section 302 I.P.C. Section 300 I.P.C. itself contains five Exceptions with certain restrictions/conditions. If the culpable homicide falls under any one of the Exceptions, then it will not be murder, it will be culpable homicide not amounting to murder. It is punishable under Section 304 I.P.C. If it is an intentional act, it will fall under part I, if it is with knowledge, it will fall under part II. Both these parts differ in severity of punishment.
57. Now, we go to the two specific Exceptions 1 and 4 to Section 300 I.P.C. dealing with the offence of murder, which makes the culpable homicide not a murder under certain circumstances.
58. Exception 1 and Exception 4 to Section 300 I.P.C. are as follows:
"Exception 1. - When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:
First. - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly. - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation. - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault."
59. These Exceptions centres around the mind of the offender, when the offence was committed, when the accused lost his power of self-control, due to grave and sudden provocation. When the offence was committed without premeditation in a sudden fight, in the heat of passion the over act was committed.
60. LORD JUSTICE GODDARD, C.J, in R. DUFFY (1949-1 ALL ER 932) defines provocation thus:
"Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self - control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind."
61. The pivotal point in "provocation" is the offender having lost his mental balance, self-control due to the provocation caused to him or the situations under which he was so placed. But it should not be a self created or induced one.
62. With this principles in our mind let us see whether under any provocation, having lost his power of self-control, the appellant had stabbed the deceased, so that his case would fall under the Exceptions to Section 300 I.P.C., so that it could be excluded from Section 302 I.P.C. and brought under Section 304 part I I.P.C.
63. In this case, on 23.04.1989, at about 8 a.m., when the deceased ploughed the land, the appellant and the other accused gone there and picked up wordy duel with them and left the place. Thereafter only in the evening, at about 6 p.m,. the stabbing incident took place. In between the incident in the morning and the occurrence proper in the evening, there was much cooling of period. (See K.M.NANAVATI Vs. STATE OF MAHARASHTRA [A.I.R. 1962 SC 605]). At the time of occurrence the appellant came armed. Concealing Soori knife, he came with predetermined mind and premeditation to stab the deceased. Then either Veeran or P.W.1 or P.W.2 were armed. They were unarmed. Just prior to the occurrence, there was no quarrel. No contributing factor for the initiation of the assault came either from the deceased or from P.W.1 or from P.W.2. The appellant suddenly frisked out the soori knife and assaulted the deceased point plank on the left chest of the deceased. The assault was so deep, it had pierced the heart of the deceased, who died on the spot. A lethal weapon has been used to inflict mortal wound on a vital organ of the body of the deceased. Then there was no quarrel. The deceased or P.W.1 or P.W.2 did anything to them. The assault suo motu emanated from the appellant. It was an intentional act on the part of the appellant. There is intention coupled with corresponding overtact constituting/completing the offence of murder.
64. In P.MUTHUPANDI Vs. STATE [(2011) 4 MLJ (Crl) 193], cited by the learned counsel for the appellant, the deceased (wife) being issueless has become an issue between the spouses and prior to the occurrence the deceased either brought money from her house for her further treatment for her infertility or shared bed with the accused (husband). In this circumstances, Mr.E.Somasundaram, the very same learned counsel for the appellant, as before us, in MUTHUPANDI, case cited supra argued that the case of the appellant, who had poured kerosene and set fire on his wife would fall under Section 304 part II I.P.C. and not under 302 I.P.C.
65. In that context the Court held as under:
"28. Taking into consideration of the fact that appellant had sustained severe burn injuries on his legs, as a result of which, one of his legs has been amputated, and also the fact that grounds exist that the appellant had acted in a frustrated state, suddenly provoked which made him to lose self-control, without thinking about the consequences, he has caused the death of his wife by pouring kerosene and setting her ablaze. Therefore, we are of the view that the said offence will not attract the provisions of Section 302 I.P.C., but only come under the exception (1) of Section 300 I.P.C. and attract a punishment under Section 304 Part I of IPC for causing the death with an intention of causing such death, however, without any pre-plan or pre meditation.
29. Therefore, an offence under Section 302 I.P.C. has not been made out but an offence under Section 304 Part IPC has been made out for which the punishment shall be imprisonment which may extent to 10 years. However, considering the age and the family back ground of the accused, we reduce the sentence to 7 years."
66. Our case is distinguishable on facts from MUTHUPANDI case cited supra. Thus MUTHUPANDI case does not comes to the rescue of Alagusamy (appellant in our case).
67. Thus, from the above, it is clear that overtact of the appellant will not fall either under Exception 1 or Exception 4 to Section 300 I.P.C. So, it is culpable homicide amounting to murder falling under Section 302 I.P.C.
68. In view of the foregoings, we concur with the finding of guilt recorded by the learned trial Court and also the sentence imposed upon the appellant.
69. In the result, this Criminal Appeal is dismissed, confirming the conviction and sentence imposed upon the appellant in S.C.No.40 of 1998 on 29.08.2005 by the learned Principal Sessions Judge, Virudhunagar Sessions Division at Srivilliputtur.
sj To (1) The Principal Sessions Judge, Srivilliputtur.
(2) The District Collector, Virudhunagar.
(3) The Superintendent of Police, Virudhunagar.
(4) The Superintendent of Prisons, Central Prison, Madurai.
(5) The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
(6) The Inspector of Police, Keela Kularaman Police Station Virudhunagar District.