Madras High Court
P.Rengasamy vs State Rep. By The on 15 November, 2017
Bench: R.Subbiah, A.D.Jagadish Chandira
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.11.2017
Reserved on : 24.10.2017
Pronounced on: 15.11.2017
CORAM
THE HONOURABLE MR .JUSTICE R.SUBBIAH
AND
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.(MD).No.267 of 2017
P.Rengasamy .. Appellant/
Sole accused
Vs.
State rep. by the
Inspector of Police,
CBCID Unit, OC,
Trichy -20
(Crime No.86 of 2008 of
Manapparai Police Station) .. Respondent/
Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of Cr.P.C. against the
judgment, dated 18.04.2016, made in S.C.No.155 of 2008, by the
learned III Additional District and Sessions Judge, Tiruchirapalli.
!For appellant : Mr.D.Malaichamy
^For respondent : Mr.R.Ramachandiran
Additional Public Prosecutor
:JUDGMENT
[Judgment of the Court was made by R.SUBBIAH, J.] This appeal has been filed by the appellant / sole accused as against the conviction and sentence, dated 18.04.2016, made in S.C.No.155 of 2008 by the learned III Additional District and Sessions Judge, Tiruchirapalli.
2.The appellant stood convicted and sentenced to undergo imprisonment as detailed hereunder:
Conviction U/s.
Sentence Fine amount 302 IPC To undergo imprisonment for life.
To pay a fine of Rs.5,000/-, in default to undergo one year rigorous imprisonment.
3.The case of the prosecution is consciously narrated below:
(a) The deceased Ramasamy Raja was the President of the Kanni Vadukapatti Village Panchayat. PW1 is the son of the deceased. PW2 is the wife of the deceased. PW1 was living with PW2 and the deceased. The accused by name Rengasamy is a resident of the same village. The accused family and the deceased family were related to each other. Ten years prior to the occurrence, the mother of the accused by name Lakshmi had orally purchased 3 cents of land from her brother-in-law by name Annapparaja. The mother of the accused owed a sum of Rs.17,000/- to the said Annapparaja towards purchase of the said land. Therefore, she obtained loan from the deceased, settled the outstanding and got the sale deed registered from the said Annapparaja.
After purchase, the mother of the accused was cultivating the land. While so, ten days prior to the occurrence, the deceased demanded back the loan amount of Rs.17,000/- from the mother of the accused. Since the mother of the accused was not in a position to repay the amount, she permitted the deceased to cultivate the said land till the repayment of loan. Pursuant to the same, the deceased ploughed the said land. But, the accused misunderstood that the deceased is attempting to grab the property by deceiving his mother and developed enmity with the deceased. The accused had also indulged in wordy quarrel with the deceased.
(b) While so, on 10.03.2008 at 6.00 a.m. the deceased went towards field from his house to attend the call of nature. PW1 to PW4 followed him to the field. At that time, near Matta Kinaru, the accused waylaid the deceased with aruval and cut him thrice over the head and other parts of the body indiscriminately. The deceased died instantaneously on the spot. On seeing this, PW1 to PW4 raised alarm. On hearing the alarm raised by PW1 to PW4, the village people gathered there and the accused fled away from the scene of occurrence after throwing away the aruval into the nearby thorny bushes.
(c) After the occurrence, PW1 proceeded to Manapparai Police Station at 7.00 a.m. and gave a complaint before PW31 ? the then Sub Inspector of Police. On receipt of the said complaint, PW31 registered the FIR in Crime No.86 of 2008 under Section 302 IPC. Then, he forwarded the complaint (Ex.P1) and the FIR (Ex.P13) to the learned Judicial Magistrate No.II, Manapparai and forwarded the copies to the other officials.
(d) On receipt of the FIR, PW32 ? the then Inspector of Police, took up the investigation, came to the place of occurrence at 8.00 a.m. The accused was caught red-handed by the village people and the accused's hands and legs were tied up with rope. In order to avoid the law and order situation, the accused was sent to the Police Station. Thereafter, he prepared an observation mahazar (Ex.P4) and rough sketch (Ex.P14) in the presence of PW22 and one Palaniandi. In the presence of the very same witnesses, PW32 recovered bloodstained earth and sample earth from the place of occurrence. He examined PW1, PW2, PW4 and others and recorded their statements. Then, he conducted inquest on the body of the deceased in the presence of panchaythars. Ex.P15 is the inquest report. Then, he forwarded the body to the hospital for postmortem through PW28 ? Constable.
(e) PW25 - Dr.Sumathi, on 10.03.2008 at 1.20 p.m. conducted postmortem on the body of the deceased. She found the following injuries on the body of the deceased:
"1) Cut injury 5 x 2 x 2 cm SD is seen in right posterior parietal region.
2)Cut injury 4 x 2 x 2 cm SD is seen on the left posterior parietal region.
3)Cut injury 6 x 3 x 3 cm SD in right anterior parietal region.
4) Cut injury 2 x 2 x 2 cm SD in left parietal eminence.
5) Cut injury 2 x 2 x 1 cm SD is seen just below the injury No.4.
6) Cut injury 3 x 1 x 0.5 cm SD in left ear.
7) The left side of the face from the left eye to the lower jaw along with the right eye are completely crushed, the structures cannot be identified and the left side of the face is disfigured.
8) These are various fractures of the facial bones on the left side.
9) Fracture mandible on the left side.
10) Cut injury 3 x 4 x 1 cm SD medial side of the right lower thigh.
11) Cut injury 2 x 1 x 1 cm SD on the right side of the face near the right ear.
12) Abrasion 2 x 1 cm right upper back.
13) Abrasion 3 x 2 cm on the left lower thigh.
14) Abrasion 4 x 3 cm on the left hipe.
15) Abrasion 2 x 1 cm on the left thigh.
Internal injuries: 1) skull fracture 5 x 5 cms on the left parietal bone with bony fragment seen.
2) Fracture parietal bone on the eminence measuring 6 cm skull opened dura shows tear sub dual haematoma seen left parietal lobe disoranged.
Chest and abdomens opened. All thoraco abdominal organs appears pale. Hart chambers empty. Stomach - empty. Hyoid - intact. (Nc) intact."
Ex.P9 is the postmortem certificate. She opined that the deceased would appear to have died of shock and haemorrhage due to head injuries and fracture on the skull 6 -12 hours prior to autopsy.
(f) After returning to the Police Station, PW32 on 16.05.2012 at 3.00 p.m. arrested the accused. On such arrest, the accused gave a voluntary confession, in which he disclosed the place where he had hidden the aruval. The admitted portion in the confession statement is marked as Ex.P6. In pursuance of the said disclosure statement, he took the Police and witnesses to the place of concealment of weapon and produced bloodstained aruval (M.O.1). PW32 recovered the same under a mahazar. On returning to the Police Station, he forwarded the accused to the Court for judicial remand and handed over the material objects under Form 95 to the Court. At his request, the material objects were sent for chemical examinations through Court. The forensic report (Ex.P12) disclosed that there was human blood on MO.1 - aruval, MO.2 - Dhothi and MO.5 ? Bloodstained soil. PW32, during the course of investigation, collected the medical records and examined medical witnesses and few more witnesses, and recorded their statements. After completion of investigation, he laid charge sheet against the accused under Sections 341 and 302 IPC.
(g) During the pendency of the investigation, the complainant - PW1 had approached this Court in Crl.O.P.(MD).No.6913 of 2008 for transfer of investigation. By order dated 30.04.2008, this Court has ordered for further investigation by the competent authority. After further investigation, an additional final report was filed by PW33 - Inspector of Police against the accused by confirming the earlier report. Again, the complainant had filed Crl.O.P.(MD).No.8951 of 2010 seeking to scrap the additional final report and to transfer the investigation to the CBCID. By order dated 07.09.2010, this Court had directed the party to file necessary petition before the trial Court and as such, the complainant had approached the trial Court by filing a petition in Crl.M.P.No.263 of 2010. The said petition was ordered by the trial Court and the investigation was transferred to CBCID, Tiruchirapalli. After completion of further investigation, the charge sheet has been filed against the accused herein alone. Aggrieved by the same, again the complainant had approached this Court in Crl.O.P.(MD).No.17915 of 2013 for transfer of investigation. But, the said petition was dismissed by this Court, vide order dated 23.10.2013, by observing that it is needless to say that the defacto complainant / PW1 is in the habit of filing petitions one after another so as to include some innocent persons in the alleged crime.
4. Based on the above materials, the trial Court framed charges under Sections 302 and 341 IPC against the accused. The accused denied the same. In order to prove the charges, on the side of the prosecution, PW1 to PW37 were examined and Exs.P1 to P18 and MOs.1 to 6 were marked. On the side of the Court, Exs.C1 to C4 were marked.
5. When the accused was questioned under Section 313 of Cr.P.C. with reference to the incriminating materials adduced by the prosecution, the accused denied his complicity in the crime. However, he stated that he alone did not commit the offence. On the side of the accused, one Ganesan was examined as DW1. But no document was marked.
6.The trial Court, after considering the oral and documentary evidence, has not found the accused guilty under Section 341 IPC and accordingly, acquitted him from the said charge. However, the trial Court has found the accused guilty under Section 302 IPC and accordingly, convicted and sentenced the accused, as stated supra. Challenging the said conviction and sentence, the appellant/accused has come up with this appeal.
7. The learned counsel appearing for the appellant mainly contended that there are lot of contradictions in the evidences of the prosecution witnesses and those contradictions are affecting the root of the case. In this regard, the learned counsel for the appellant took this Court through the evidences and documents and submitted as follows:
(a) PW2 - the wife of the deceased in the chief examination has stated that at the time of occurrence, PW1 was sleeping in the house and PW1 was woken up by informing the occurrence. In the cross examination, PW2 has categorically admitted that at the time of occurrence PW1 was sleeping in the house and after 15 minutes of the occurrence, PW1 came to the place of occurrence. When PW1 reached the place of occurrence, the accused was tied up. This version would prove that PW1 was sleeping and he came to the scene of occurrence only after the occurrence was over. Therefore, the presence of PW1 at the time of occurrence is doubtful.
(b) As per Ex.P1 complaint, PW1 had stated that on 10.03.2008 at about 6.00 a.m. when the deceased went to the field for attending call of nature, he and PW2 to PW4 had followed him. But, in the chief examination, PW1 had stated that within two minutes after leaving the house, the deceased has raised hue and cry and PW2 and PW3 went to see the deceased. He has not stated about the presence of PW4. Thus, none of the eyewitnesses viz., PW1 to PW4 had followed the deceased. The earliest version in Ex.P1 with regard to the fact that PW1 to PW4 followed the deceased is false and therefore, Ex.P1 cannot be believed.
(c) PW1 has categorically admitted in the cross examination that he has given complaint against the uncle of the accused by name Gunasekaran, one Krishnamani and Tea shop Ganesan. But, their names have not found a place in the complaint. Thus, the real complaint has been suppressed. Hence, Ex.P1 cannot be believed.
(d) Though the FIR was said to have been registered at 7.00 a.m. on 10.03.2008, the FIR has reached the hands of the learned Magistrate only on 10.03.2008 at 3.00 p.m. and further the date of seal is mentioned as 11.03.2008. There is no explanation for the said delay. The delay in sending the FIR to the Court and the date of seal found in the FIR would go to show that Ex.P1 had deliberately come into existence long after the occurrence.
(e) The recovery of MO.1 on the confession of the accused is doubtful, as PW5 has categorically stated that MO.1 aruval was available nearby the place where the accused was tied up and the Police seized the same. When the accused was caught red handed and very much available in the place of occurrence, PW32 did not arrest the accused and recover the material objects and instead, he has stated that the accused was arrested at 3.00 p.m. at the Police Station and after confession of the accused, MO.1 was recovered. Hence, it is doubtful whether the accused was caught red-handed.
8. Per contra, the learned Additional Public Prosecutor submitted that the prosecution has clearly proved the case of the prosecution by examining eyewitnesses PW1 to PW4 and the medical evidences. The recovery of MO.1 was proved through the recovery witness ? PW22. The accused himself has categorically admitted in 313 Cr.P.C question that he committed the murder. But, only in order to divert the issue, he has stated that he alone was not involved in the offence and hence, that portion cannot be believed and based on the same, this appeal can be dismissed. After careful investigation of the several investigating officers, it was found that this accused alone had been involved in the occurrence. Under such circumstances, no infirmity can be found on the conviction and sentence passed by the trial Court. Thus, he prayed for dismissal of the appeal.
9. At this juncture, countering the submission of the learned Additional Public Prosecutor with regard to 313 Cr.P.C., the learned counsel for the appellant submitted that the statement made by the accused under Section 313 Cr.P.C. cannot be relied upon. In this regard, he invited the attention of this Court to a decision reported in (1963) 3 S.C.R. 678 (Narain Singh Vs. State of Punjab), wherein the Hon'ble Supreme Court has held that "If the accused person in his examination u/s.342 Cr.P.C. (now Section 313 of Cr.P.C.) confesses to the commission of the offence charged against him, the Court may, relying upon that confession proceed to convict him, but if he does not confess and in explaining circumstances appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. It is not open to the Court to dissect the statement and to pick out a part of the statement which may be incriminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation."
10. We have given our anxious considerations to the rival submissions made on either side and perused the materials available on record.
11. It is a case of brutal murder. The accused is a disabled person. PW1 has stated in his chief examination that on 10.03.2008 at 5.30 a.m. his father viz., deceased went to the field and at that time he was in his house; Within two minutes thereafter, he heard the hue and cry of the deceased; Immediately, his mother (PW2) and servant (PW3) went to the place of occurrence; Thereafter, he went to the place of occurrence; At that time, he saw the accused cutting the deceased with aruval indiscriminately; The accused threatened to kill, if anybody tried to come near to him; and Then, the accused was caught hold by PW5 and PW10.
12. PW2 has stated in her evidence that at 5.30 a.m. her husband viz., the deceased went to the field; Within 15 minutes thereafter, she heard the hue and cry of the deceased and when she went to see the deceased, the deceased was lying in the floor and the accused was cutting the deceased in his face and chest by aruval and in that action, the accused removed the right side eye of the deceased; PW3 and PW4 also came there and saw the occurrence; We three saw the occurrence first; and on hearing the alarm raised by them, the village people gathered there and PW5 and PW10 caught hold the accused.
13. PW3 has stated in his evidence that he saw the deceased moving towards his field at 5.30 a.m. and he used to switch on the motor in the field and since the deceased was moving towards the field, he thought that the deceased would switch on the motor and hence, he moved towards tea shop and at that time, within 2 to 3 minutes, he heard the hue and cry of the deceased; Hence, he went to the side of the Well. Before him, PW2 was going towards the place of occurrence and PW2 stated that the deceased, who went to the side of the Well, was missing; Then, they went to the place of occurrence. The deceased was lying on the floor and the accused was cutting the deceased by sitting on him; She shouted at the deceased; The accused threatened to kill him, if he come near to him; Then, he raised an alarm; On hearing the alarm, the village people gathered there; The accused attempted to escape by running towards south; He, PW5, PW10 and others went to catch the accused and after pushing down the aruval in the hands of the accused with a stick, the accused was caught hold, brought to the place of occurrence and tied by rope; and when we ran to catch the accused, PW1 came to the place of occurrence.
14. PW4 has stated in her evidence that on the date of occurrence at 5.30 a.m. she went to the field; On seeing her husband (PW3) returning from the tea shop by running, she followed him to the place of occurrence; The accused was pressing the neck of the deceased with his leg and cut the face of the deceased by MO.1 and since the accused removed the eye of the deceased by aruval and threw away the same, PW2 fainted; The accused ran away towards south; and subsequently, the village people caught hold of the accused and tied him.
15. PW5 has stated in his evidence that on hearing the alarm raised by PW1 to PW4, he went to the place of occurrence; At that time the accused was nearby the place of occurrence and PW1 to PW4 came in the opposite direction; Since PW1 to PW4 informed him that the accused is threatening them with aruval, he asked PW2 to bring a stick; and After several attempts, he caught hold of the accused. PW6 has stated about the motive for the occurrence. PW7, PW8, PW10, PW12, PW14, PW15, PW16, PW17, PW19 and PW20 are hearsay witnesses. PW9, who is the wife of the accused, has stated that she came to know from the village people that her husband was also involved in the occurrence. PW11 has stated about the preparation of observation Mahazar by the investigating officer. PW22 has stated about the preparation of observation mahazar and rough sketch at the place of occurrence and also about the arrest of the accused and recovery of MO.1 ? aruval by the investigating officer. PW25 has stated about the postmortem conducted by her. PW26 has stated about handing over the FIR to the learned Judicial Magistrate No.III, Trichy. PW27 has stated about the injuries sustained by the accused. PW29 ? Dr.Natarajan has stated about the opinion given by him to the queries raised by the CBCID that the injuries on the deceased could be caused by a single accused with a single weapon like aruval. PW31 has stated about the registration of complaint. PW32 has stated about the investigation done by him. PW33 has stated about the further investigation done by him. PW34 has stated about the reinvestigation done by him. PW35 and PW36 ? Forensic experts have stated that there were bloodstains on all the material objects. PW37 ? Handwriting Expert has stated that the letters, which are alleged to have been written by the accused in prison, have not been written by him.
16.From the categorical evidences of the eyewitnesses PW1 to PW4 coupled with the evidences of PW5, PW25, PW29 and medical evidences, the prosecution has clearly proved that due to enmity, this accused had cut the deceased with aruval indiscriminately and caused the death of the deceased.
17. The first and foremost submission of the learned counsel for the appellant is that PW1 could not have witnessed the occurrence, in view of the admission of PW2 in the cross examination that at the time of occurrence, PW1 was sleeping and that PW1 came to the place of occurrence after 15 minutes and when PW1 came to the place of occurrence, the accused was available in the place of occurrence, after being tied with the rope. PW1 has stated in his cross examination that at the time of occurrence at 5.30 a.m., he was sleeping in the house and on hearing the hue and cry, he himself woke up and went to the place of occurrence and he was not woken up by anybody informing the occurrence. PW3 has stated in his chief examination that when he went to catch the accused, PW1 came to the place of occurrence. PW5 has stated in his evidence that PW1 had also attempted to catch the accused along with him. From the above evidences, it can be stated that PW1 came to the place of occurrence some time after the occurrence. Even assuming that PW1 did not see the attack on the deceased, the prosecution has proved the case beyond any reasonable doubts through the eyewitnesses PW2 to PW4. Therefore, this contention is eschewed.
18. The next submission of the learned counsel for the appellant is that the earlier version in Ex.P1 with regard to the fact that PW1 to PW4 followed the deceased is false and therefore, Ex.P1 cannot be believed. Though PW1 has stated in the complaint- Ex.P1 that PW1 to PW4 followed the deceased to the field, PW1 to PW4 in their evidences have stated that they came to the place of occurrence in different situation. In every complaint, the details of all the movements of the witnesses and the accused cannot be expected to be stated and for the same the complaint cannot be disbelieved. Therefore, this contention is rejected.
19. The original complaint has been suppressed by the prosecution as the names of the persons viz., Gunasekaran, Krishnamani, Tea shop Ganesan have not been mentioned in the complaint as admitted by PW1 in the cross examination. PW1 has categorically stated in his chief examination that there was a land dispute pending between the deceased and the deceased's brother by name Krishnamani and hence, he has informed the Police that he has suspicion on Krishnamani and his henchmen by name, Gunasekaran, Kumar, Kuttaiyan @ Varadharaj, Ravi, Tea-shop Ganesan, Kuppusamy. Subsequently, on coming to know about the letters written by the accused to his relatives to the effect that he alone did not commit the offence and the relatives of the deceased were also involved in the occurrence, he gave a complaint to the District Collector and the Superintendent of Police and as there was no response to the same, he had filed the case before the High Court. It is in that complaint PW1 might have stated about the names of the above said persons and not in Ex.P1. Therefore, Ex.P1 cannot be disbelieved.
20. With regard to the delay of seven hours in the FIR reaching the Court, it is stated by PW31 that the FIR was registered at 7.00 p.m. and the same was forwarded to the Court at 8.00 a.m. PW26 - the then Head Constable has stated in his evidence that on 10.03.2008 at 7.30 a.m. he received the express FIR and after receiving passport, he went to the Judicial Magistrate Court at Manapparai. PW26 has further stated that since the Judicial Magistrate at Manapparai was on leave on that day, he went to the Office of the in-charge Magistrate viz., Judicial Magistrate No.III, Trichy and handed over the FIR. The distance between the Police Station to the Judicial Magistrate Court at Manapparai is three kilometers. The distance between Manapparai and the Judicial Magistrate Court No.III, Trichy is about 40 kilometers. Considering the above distance factor, this Court is of the view that the six hours delay cannot be stated to be an inordinate delay. More over, on the next day ie. on 11.03.2008, again the very same FIR may have been brought to the Judicial Magistrate Court at Manapparai and therefore, another signature, dated 11.03.2008 and seal of the Judicial Magistrate, Manapparai, dated 11.03.2008, were found in the FIR, for which the FIR cannot be doubted.
21. So far as recovery of MO.1 - aruval is concerned, it is stated by PW5 in the cross examination that MO.1 aruval was available nearby the place where the accused was tied up and the Police seized the same. But, PW32 has stated in his evidence that before the arrest of the accused, he was informed that the accused threw away his aruval. He searched for the aruval at a place nearby the scene of occurrence, but he could not find the same. Subsequently, based on the confession of the accused, MO.1 was seized from the throne bushes, which was situated 30 feet away from the place of occurrence. The recovery of MO.1 from the accused based on his confession has been corroborated by PW22 - the then Village Administrative Officer. Therefore, the evidence of PW5 cannot be given much weightage.
22.With regard to the arrest of the accused is concerned, it is stated by PW32 that at the place of occurrence, the accused was caught red-handed by the villagers and his hands and legs were tied by rope. PW32 has further stated that considering the safety of the accused and to avoid law and order problem, he immediately sent the accused to the Police Station. PW32 has further stated that after completion of investigation, he returned to the Police Station at 3.00 p.m. and arrested the accused. It is seen from the record that on the date of occurrence ie. on 10.03.2008 at 8.20 p.m. the accused was taken by the Police to the Government Hospital, Manapparai, wherein PW27 gave treatment to the accused and found three small injuries on the accused and the accused also informed to PW27 that on 10.03.2008 at 6.00 a.m. after murdering the deceased, when he tried to escape, he fell down, due to which he sustained injuries. Ex.P10 is the accident register. Considering the reasons stated by the investigating officer - PW32 and the subsequent events, we are of the view that the arrest of the accused cannot be doubted.
23. So far as the submission with regard to 313 of Cr.P.C. is concerned, this Court is of the view that the same need not be gone into, in view of the categorical evidences of the eyewitnesses PWs.2 to 4.
24. Having come to the conclusion that it was this accused who had caused the death of the deceased, now let us decide as to what was the offence that was committed by the accused by the said act.
25. The very fact that the accused was in the field with aruval and cut the deceased indiscriminately on the vital parts of his body would all go to show that his intention was only to cause the death of the deceased. Thus, his act would only fall within the first limb of Section 300 of the Indian Penal Code.
26. Now, we have to examine as to whether the act of the accused would fall within the ambit of any one of the Exceptions to Section 300 of the Indian Penal Code.
27. The learned Counsel for the appellant would submit that the act of the accused would fall under the First Exception to Section 300 of the Indian Penal Code. He would further submit that three days before the occurrence, when the deceased was ploughing the land of the accused, he quarrelled with the deceased. DW1 has also stated in his evidence that as per the request of the accused, he asked the deceased to send back the wife of the accused from his custody and to hand over the land of the accused, but he did not give any response to the same. Further, DW1 has admitted in the cross examination that he did not directly know about the illegal relationship between the wife of the accused and the deceased, and he heard about the same only from the accused. This was the provocation for the accused. In the confession statement the accused has stated that on the next day early morning, when he went out of the house, the deceased was moving towards his field and on seeing the deceased, he got provoked further and out of the said provocation, viz., sustained provocation, according to the learned counsel, the accused had caused the death of the deceased.
28.At this juncture, this Court is of the view that it would be appropriate to refer to the decision of the Judgment of the Hon'ble Supreme Court in K.M.Nanavati Vs. State of Maharashtra, reported in AIR 1962 SC 605. In the said case, the Hon'ble Supreme Court, after having dealt with the Indian Scenario relating to the grave and sudden provocation, has concluded in Paragraph No.85 of the Judgment as follows:-
"85. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of ?grave and sudden? provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation".
29. In yet another Judgment of a Division Bench of this Court in Suyambukkani Vs. State, reported in CDJ 1989 MHC 253, the Hon'ble Dr.Justice David Annoussamy, while speaking for the Bench, analyzed the entire Indian Scenario and held that the Indian Courts have added one more Exception to Section 300 of the Indian Penal Code, known as "sustained provocation". The Division Bench took into account K.M.Nanavati's case and held that the said decision is not the first one to take into consideration trie situation of sustained provocation. The Division Bench further went on to say on sustained provocation as follows:-
"Though there has seen here and there attempts, in those decisions to bring the sustained provocation under Exception 1 to Sec.300, I.RC, there is a cardinal difference between provocation as defined under Exception I and sustained provocation. The only word which is common is 'Provocation'. What exception I contemplates is a grave and sudden provocation whereas the ingredient of sustained provocation is a series of acts more or less grave spread over a certain period of time, the last of which acting as the last straw breaking the camel's back may even be a very trifling one. We are therefore far from grave and sudden provocation contemplated under Exception 1 to Sec.300, I.RC. Sustained provocation is undoubtedly an addition by Courts as anticipated by the architects of the I.PC. In Paragraph No.22 of the said Judgment, the Division Bench has held as follows:-
"Now that it is clear that the exceptions under Sec.300, IPC are not limitative, we have to examine whether Nallathangal's syndrome can be considered as one of the exceptions. Since the Code in its structure make the exceptions limitative, Courts have to show restraint on circumspection in adding exceptions and such additions should be ejusdem generis. In this connection, it is necessary to examine what is the true nature of the exceptions. The exceptions are in the nature of important excusing circumstances and they have the following characteristics.
One thing is clear from the above analysi viz. in all the exceptions either premeditation or ill-will is absent. Therefore, when both are present, it will be impossible to consider the matter as an exception?"
30. Yet another Division Bench of this Court in Rajesh Vs. the State, reported in 2012 2 LW [Crl] 689, after making reliance on Suyambukkani's case and many other subsequent cases, has upheld the sustained provocation as one of the Exceptions to Section 300 of the Indian Penal Code and held that the act of the accused would fall within the ambit of First Exception to Section 300 of the Indian Penal Code.
31. In the instant case, according to the learned Counsel, the act of the deceased in not sending the wife of the accused and in not giving the land back were causes for provocations. A perusal of the evidence of the eyewitnesses P.Ws.1 to 4 and DW1, confession of the accused leading to the recovery of M.O.I. aruval, and the medical evidence clearly shows that the misunderstanding and wordy quarrel between the accused and the deceased added fuel to the fire by the conduct of the deceased, resulting in the sustained provocation for the accused to cut the deceased. Driven by the said provocation, when the accused saw the deceased in the early morning, the accused cut the deceased. Thus, the act of the accused would squarely fall under the first exception to Section 300 IPC and the accused is liable to be punished under Section 304(i) IPC.
32. So far as the quantum of sentence for the offence under Section 304(i) IPC is concerned, this Court is of the view that it would be appropriate to impose the sentence 10 years rigorous imprisonment. With regard to the charge under Section 341 IPC is concerned, the trial Court has rightly held that the same has not been proved and therefore, the same need not be interfered with.
33. In the result, this criminal appeal is partly allowed and the conviction and sentence imposed in S.C.No. 155 of 2008 under Section 302 IPC are set aside, instead the appellant/accused is convicted under Section 304
(i) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-, in default to undergo one year rigorous imprisonment. The sentences already undergone by the appellant/accused shall be given set off under Section 428 Cr.P.C. Fine amount, if any, paid by the appellant/accused shall be adjusted.
To
1.The III Additional District and Sessions Judge, Tiruchirapalli.
2.The Inspector of Police, CBCID Unit, OC, Trichy -20
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
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