Madras High Court
Chinnan Alias Chinnaswami And Another vs The State on 25 July, 1995
Equivalent citations: 1997CRILJ441
Author: A.R. Lakshmanan
Bench: A.R. Lakshmanan
JUDGMENT Kanakaraj, J.
1. This is an appeal against conviction and sentence imposed on the appellants by the Principal Sessions Judge, Coimbatore, in S.C. No. 111 of 1985 on 28-11-1986. Learned Sessions Judge found the first appellant guilty of murder under Section 302 I.P.C. and sentenced him to imprisonment for life. He also found the second accused guilty of offence under Section 323 I.P.C. and sentenced him to pay a fine of Rs. 500/- and in default to undergo Rigorous Imprisonment for a period of one month.
2. The facts leading to the above Sessions Case are as follows :- Both the accused as well as the deceased are living in the village of Samanapudur and they are agriculturists mostly attending to cooly work. Witnesses P.Ws. 1 to 3 are related to the deceased. The deceased the accused is very close to the house of the deceased situate on the south-western side. Second accused is the elder brother of the first accused. The wife of the accused by name Kannammal was suspected to be carrying on an illicit relationship with the deceased. About 15 days prior to the occurrence which event took place on 5-5-1986, the deceased and the first accused were engaged in a wordy quarrel over the said issue of illicit relationship between the deceased and the wife of the first accused. On the morning of 5-5-1986, the deceased had met the wife of the first accused at about 8.00 a.m. and thereafter the demand, proceeded to Toddy shop at Narasapuram. The first accused was in the Toddy shop and had picked up a quarrel with the deceased. P.W. 4 was working in the Toddy shop. The first accused is said to have picked up a quarrel with the deceased and at the instance of P.W. 4 they were pacified. The deceased came back to his house and told his daughter, P.W. 1 that he had a quarrel with the first accused at the toddy shop. Soon thereafter, the first accused came to the house of the deceased with a curved knife called 'Sallai kathi'. M.O. 1 and shouted at the deceased, saying "You are continuing to communicate with my wife and when questioned you became wild with anger. I will do away with you." So saying the first accused hit the head of the deceased with the weapon, M.O. 1. The second accused came with a stick, M.O. 2 and struck at the left shoulder of the deceased. The deceased took a stick M.O. 3 from pandal and struck at the first accused. P.W. 1 is also said to have taken a stick from the Pandal and struck at the second accused. The first accused thereupon pecked the cheek of the deceased with M.O. 1. He again struck on the left neck of the deceased. Thereupon the deceased fell down with injuries. Both the accused ran away. P.W. 1 shouted and on hearing her shouts, P.Ws. 2, 3 and others came to the spot. They laid the deceased on a mat, M.O. 5. Before they could bring a cart to take the deceased to the hospital, the deceased passed away. P.W. 1 and her grand-father P.W. 2 proceeded to Maniyakarar of Narasapuram, but he was not available. They proceeded to Alandurai Police Station and told the Sub-Inspector as to what happened. He recorded a statement from P.W. 1 and after reading over the same to P.W. 1, took her thumb impression. It is Ex.P. 1, P.W. 9 was the Sub-Inspector of Police at Alandurai Police Station. He was in attendance at about 4.30 a.m. on 5-5-1986 when P.Ws. 1 and 2 came to the Police Station and P.W. 1 narrated as to what happened. He recorded the statement Ex.P. 1 and registered the same as Crime No. 54/86 under Section 302 I.P.C. He sent express F.I.Rs. to the Second Class Magistrate No. II, Coimbatore and to the higher officials. P.W. 11 the Sub-Inspector of Police, in charge of Podanur Circle. He received information at 5.30 p.m. and took up investigation. He proceeded to the spot and prepared the observation Mahazar, Ex.P. 12 and a rough sketch, Ex.P. 13. He recovered blood-stained sticks M.Os. 3 and 4 and mat, M.O. 5, blood-stained earth, M.O. 8 and sample earth, M.O. 9. All those material objects were recovered under Ex.P. 14 Mahazar. He conducted the inquest between 6.00 p.m. and 11.00 p.m. and examined P.Ws. 1 to 4 and other witnesses. He entrusted the body to P.W. 7 and gave a requisition Ex.P. 2 for the conduct of autopsy. P.W. 7 took the requisition Ex.P. 2 to the C.M.C. Hospital, Coimbatore, P.W. 5 conducted the autopsy on 6-5-1986 at 2.00 p.m. In his opinion the deceased would appear to have died due to profuse haemorrahage is a results of the injuries inflicted on him. He further opined injury Nos. 2, 3 and 5 could have been caused by hitting with a 'Sallai Kathi', M.O. 1 and injury Nos. 1 and 4 could be caused by beating with a stick. Ex.P. 3 is the postmortem certificate. After the autopsy, P.W. 7 recovered the blood-stained dhoti, M.O. 6, and underwear M.O. 7 and handed over the same to the Police Station. On 6-5-1986, at about 6.00 p.m., on information, P.W. 11 proceeded to Vellimelaipattinam and at a place opposite to the garden of Ponnusamy in Viraliyer road, arrested the first accused. P.W. 10 was present at the time of arrest. The first accused gave a confessional statement, the admissible portion of which is Ex.P. 10. In pursuance of the said admission, the first accused took P.Ws. 10 and 11 to a pond in Samannan Pudur and at the south-eastern corner he had concealed the Sallai Kathi, M.O. 1 and stick, M.O. 2. He recovered the same and handed them over to P.W. 11. Ex.P. 11 is the Mahazar for the seizure of the weapons. When the accused were brought to the Police Station they found that they had injuries on them. They were sent to the Doctor for examination. P.W. 6 is the Doctor for examination. P.W. 6 is the Doctor in attendance at C.M.C. Hospital, Coimbatore on 6-5-1986 at about 9.20 p.m. when the accused were produced by the Police Constable 605. P.W. 6 examined them and gave treatment. Exs.P. 4 and P. 5 are the extracts of the Accident Register relating to the treatment. On 7-5-1986 P.W. 11 examined P.W. 3. He then sent a requistion Ex.P. 6 to the Second Class Magistrate, for sending the incriminating materials for chemical examination. P.W. 8 is the Head Clerk in the Second Class Magistrate No. II, Coimbatore and he obtained orders from the Magistrate and forwarded the material objects under Ex.P. 7 for chemical analysis. Ex.P. 8 is the report of the analyst and Ex.P. 9 is the report of Serologist. On 19-5-1986 P.W. 11 examined P.W. 6 and filed a final report to the said Magistrate under Section 173(2) Cr.P.C. on 14-6-1986.
3. On committal, learned Sessions Judge framed a charge against both the accused stating that in furtherance of a common intention they had intentionally caused the death of the deceased Kannan, by the first accused attacking him with the Sallai Kathi, M.O. 1 and by the second accused beating him with a stick M.O. 2, on his left hand and shoulder. On the accused pleading not guilty, learned Sessions Judge examined 11 witnesses and marked 15 exhibits besides nine material objects. When the accused were questioned under Section 313, Cr.P.C. about the incriminating evidence against them, they denied complicity, but did not examine any witness or file any document.
4. Before adverting to the arguments advanced by Mr. K. N. Basha appearing for the appellant we would do well to analyse the prosecuting case to find out whether the prosecution has proved that the accused were responsible for the injuries on the deceased. P.W. 1 is the daughter of the deceased and she was aged about 16 years. She has spoken to the wordy quarrel between the accused and the deceased 15 days prior to the occurrence and the fact that the deceased told her about his meeting with Kannammal, wife of the first accused on the date of the occurrence. She has also very clearly spoken about the quarrel at the toddy shop on the date of the occurrence. It is in this backdrop that the deceased came to his house at about 12 Noon. Soon thereafter, the first accused came there with the Sallal Kathi, M.O. 1. What is more, he questioned the deceased as to how he continued his relationship with the wife of the first accused and why he should get angry when questioned about the same. He is said to have uttered the words that he will once for all do away with the deceased. It is only thereafter he inflicted the first injury on the head. The second accused is said to have struck the deceased on the left shoulder with M.O. 2 stick. The deceased and P.W. 1 had struck the accused with two sticks M.O. 3 and M.O. 4. But the first accused again pecked the cheek of the deceased with M.O. 1 and also gave a cut on the neck of the deceased. Nothing has been elicited from this witness to discredit her evidence. The only statement in cross-examination which is relied on by the defence is that the deceased also used to have a Sallai Kathi similar to M.O. 1, always in his possession.
5. P.W. 2 is the father-in-law of the deceased and he was residing just one house away from the house of the deceased on the southern side. He has also seen the occurrence and has corroborated the evidence of P.W. 1, and has described the actual attack on the deceased, in all material particulars. The only complaint about his evidence is that he was not spoken to the words referred to by P.W. 1 before the assault. P.W. 3 is the sister-in-law of the wife of the deceased. She is living about two houses away from the house of the deceased. She has referred to the words spoken by the first accused before the actual attack on the deceased. She has also described the attack in the same manner as spoken to by P.Ws. 1 and 2. The medical evidence in this case also is in consonance with the prosecution case as disclosed by the evidence of P.Ws. 1 and 3, P.W. 4 has proved the motive aspect of the case and especially the quarrel which took place at the toddy shop at about 11.00 a.m. on the very same day. Sallai Kathi, M.O. 1 is a weapon with a curved knife about eight inches in length with a separate bamboo stick handle, about 4 1/2 inches long. Though the Serologist report did not indicate that M.O. 1 was stained with the same group of human blood as was found in the dhoti and underwear worn by the deceased, we are satisfied from the evidence that it was the first accused who had alone wielded the weapon M.O. 1 in causing injuries to the deceased. What is more, there is unimpeachable evidence regarding the presence of the accused at the spot because of the injuries sustained by them on account of the beatings given by P.W. 1 and the deceased with a stick. No doubt, in the cross-examination of P.W. 6, it has been elicited that injury No. 1 found on the first accused was incised, punctured lacerated wound. An argument was advanced that the prosecution case cannot be believed because of the evidence of P.W. 6. We do not think that this argument can be accepted because the Doctor has only stated that the injuries are all incised, punctured lacerated wounds. On the other hand, except injury Nos. 1 and 2 all the other injuries on the first accused, were abrasions. We are unable to conclude from the above statement of the Doctor, P.W. 6 that the deceased had wielded a weapon like, M.O. 1 causing an incised wound on the first accused. The evidence of the Doctor in this respect is not precise and the nature of the injuries do not also lead to the conclusion that the first accused was hit by a weapon like M.O. 1. What is more, when questioned under Section 313, Cr.P.C., the first accused has admitted that the injuries on him were caused by a stick and the evidence of P.W. 6 to that effect is correct. For all the above reasons, we come to the conclusion that the hand of the first accused alone was responsible for causing the injuries on the deceased. To this extent, we accept the findings of the trial Court.
6. Learned counsel for the appellants has taken us through the statement of the first accused while being questioned under Section namely, 5-5-1986 he had gone for certain well-digging work and returned to his house at about 1.00 p.m. When he opened the house he found his own wife and the deceased Kannan were lying in a mat. The deceased was said to have in his possession a Sallai Kathi. Being apprehended by the first accused, the deceased is said to have struck the first accused with the Sallai Kathi two times. They are said to have rolled on the ground and struck against a pial. He also stated that he went to the Police Station at 3.00 p.m. and he was detained there. The trial Judge has specifically considered this aspect of the case and has rejected the same as totally improbable. We do not also consider the story of the first accused as probable because of two important reasons namely, that the deceased would not have chosen such a time to have illicit inter counsel with Kannammal and in any event he would not have kept the door open. We therefore, straightaway rejected the plea of the accused.
7. Learned counsel for the appellants then proceeds to say that assuming that the first accused had caused injuries, an offence under Section 302, I.P.C. had not been made out and if at all, only an offence under Section 304, Part 1, I.P.C. has been made out by the prosecution. He relies on the theory of sustained provocation for taking the case out of Section 302, I.P.C. According to him, he was aggrieved by the action of the deceased in having illicit relationship with his wife. He had a quarrel about 15 days prior to the occurrence and thereafter he was hoping that the deceased will not continue the relationship. But on the date of the occurrence, the deceased had again met Kannammal and therefore, the first accused was enraged and picked up a quarrel at toddy shop at 11.00 a.m. Says, learned counsel for the appellants that the grave and sudden provocation and the state of anger created at the toddy shop had not subsided and the first accused was coming to the house of the deceased in the same state of anger caused by the provocation of the deceased in meeting his wife once again. In other words, according to learned counsel, this is a clear case of sustained provocation which is accepted by this Court as sufficient for taking the case out of Section 302, I.P.C. Since this kind of plea is being made very often we propose to briefly refer to the decision on this point before accepting the case of the appellants.
8. The earliest case is Chandran, Inre, 1988 Mad LW (Cri) 113. This decision only briefly refers to the defence plea that the accused had entertained a sustained provocation and the final act of inflicting fatal injuries was the result of a further provocation given just before the offence. It is worthwhile to remember that in that case a further provocation just before the offence was given by the deceased and the Court accepted the same as a "sudden and grave provocation caused by the deceased." The Court added that the sudden and grave provocation was on account of "sustained provocation" that the accused was nurturing for a long period because of the conduct of the deceased in having illicit intimacy with his wife. We will revert back to this decision because it is almost identical to the facts of the present case.
9. The second case in point of time was rendered on 10-2-1989 in Suyambukkani v. State of Tamil Nadu, 1989 Mad LW (Cri) 86. In this case an attempt has been made to trace the history of the Indian Penal Code and the need for understanding the Code according to the changing circumstances and conditions of life prevailing in India. While we accept the proposition that Courts should not be static in the interpretation of law we are also aware of our limitations in adding to the law of the land. In our opinion that is an exercise which should be undertaken by the Parliament on the basis of an extensive study. While we do agree that the fact and circumstances of each case can be studied deeply to see whether they can be brought under one or other exceptions contained in Section 300, I.P.C., we will not subscribe to the view that Courts can travel beyond the provisions of Sections 299, 300 and 304, I.P.C. for reducing the gravity of the offence. The Division Bench observed a follows :-
"What Exception 1 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 S. 300, I.P.C. Sustained provocation is undoubtedly an addition by Courts, as anticipated by the architects of the Indian Penal Code."
10. While we accert the suggestion that the last straw could be considered as grave and sudden in a series of provocations, we are of the opinion that the last straw should at least be in the nature of provocation referred to in the earlier case reported in 1988 Mad LW (Cri) 113.
11. The next judgment is Sankaral alias Sankarayee v. State, 1989 Mad LW (Crl) 468 (DB), rendered on 20-6-1969. It is interesting to note that while following the judgment in Suyambukkani v. State of Tamil Nadu, 1989 Mad LW (Cri) 86, the Division Bench has expressed a word of caution. It is as follows :-
"While coming to his conclusion we are aware of the position that nobody is entitled to take away the life of another person and that a provocation to come under Exception 1 must be grave and sudden in the real sense of the term. It is only in such cases, the question of sustained provocation can be applied and we do hot propose to lay down any hard and fast rule in this regard. It depends upon the facts and circumstances of each given case. The Courts have held that the provocation must be sudden and that there should not be any interval between the provocation and the act. It is the fundamental principle that whenever there was time to cool down, an accused person cannot take advantage of this exception, as the law protects only the cases where an accused person acted out of sudden and grave provocation and not in cases where he had time to cool down. Whenever there was time for cooling, the Courts have held that an accused is not entitled to the benefit of Exception 1 to S. 300, I.P.C."
These words of caution have really arisen out of the fourth principle enunciated by the Supreme Court of India in K. M. Nanavati v. State of Maharashtra, . In this connection we should not lose sight of the words "whilst deprived of the power of self-control", in Exception 1 and the heat of passion in Exception 4 to Section 300, I.P.C.
12. If we can add out own views to the principles adumebrated by various Courts, we would like to point out that the defence can never be allowed to twist and bend every motive for the crime as a case of grave and sudden provocation. There is always a temptation to project the motive for the crime as provocation for the offence. This can never be allowed and one has to keep in mind the words of caution uttered by the Division Bench in Sankaral Mills Sankarayee v. State, 1989 Mad LW (Cri) 468. The concept of rule of law implies that if a person has been wronged or is being harassed for no fault of the person, there is always a remedy under the law of the land. Certainly, such a person cannot take the law into his own hands. This, in our opinion, is the underlying principle of criminal jurisdiction.
13. Having thus, reminded ourselves of the legal position, if we examine the facts of the case, we find that the accused did have a grievance for a long time that the deceased was carrying on with his knife (wife). P.W. 3 in her evidence categorically says that the deceased and the wife of the first accused were having illicit intimacy for a long time. Even according to P.W. 1; 15 days prior to the occurrence there was a quarrel relating to the said illicitantimacy. On the date of occurrence at about 8.00 a.m. the deceased had met the wife of the first accused. On account of that there was a quarrel between the first accused and the deceased at about 11.00 a.m. at the toddy shop and this is clearly spoken to by P.W. 4. The question is whether between 11.00 a.m. and 12.00 Noon, the first accused could have cooled down and whether he was in the same state of anger and distress when he reached the house of the deceased at 12 Noon. There is no clear evidence as to the distance between toddy shop at Narasapuram and the house of the deceased, where the occurrence took place. We can take judicial notice of the fact that it is a small village and in the hamlet of Samananpudur there were hardly, 15 to 20 house. Therefore, toddy shop could not have been very far away from the house of the deceased. In other words, we are clearly of the opinion that the grave and sudden provocation sustained by the accused at toddy shop on account of the deceased meeting his wife at about 8.00 a.m. and the quarred at the shop could not have been cooled down by the time he came to the house of the deceased. We are fortified in our view by the fact that the accused shouted the deceased.
Roughly translated, it means that you are keeping my wife causing shame in the village, but if questioned you get angry. I will finish with you. These words, in our opinion, are nothing but a continuation of the quarrel which had taken place at the toddy shop. It is in this connection we would like to refer to the first judgment cited by us i.e., 1988 Mad LW (Cri) 113. In that case also there was a similar history of illicit intimacy between the wife of the accused and the deceased and just before the occurrence the deceased had made a defamatory remark against the accused. The Division Bench held that the offence will come under the Exception 1 to Section 300, I.P.C. punishable under Section 304, Part 1, I.P.C. The only difference in this case is that the accused had uttered certain words which we have concluded was part of the quarrel which had taken place at the toddy shop. In other words, the last straw which broke the camel's back was on account of grave and sudden provocation given by the deceased. In this view of the matter, we hold that the offence made out in this case is only culpable homicide not amounting to murder punishable under Section 304, Part 1, I.P.C. Having regard to the nature of the injuries caused by the accused on vital parts of the deceased there is no escape from the punishment under Section 304, Part I, I.P.C. So far as the second accused/second appellant, the evidence of the prosecution witnesses, having already been accepted, there is no ground for interference with his conviction.
14. We accordingly, set aside the conviction and sentence as imposed by learned Sessions Judge in S.C. No. 111 of 1986 on the first accused and instead hold that the first appellant/first accused is guilty of culpable homicide not amounting to murder punishable under Section 304, Part I, I.P.C. We therefore, impose a sentence of seven years Rigorous Imprisonment on the first appellant/first accused. The appeal by the first accused is partly allowed in the above manner. The appeal by the second accused is dismissed.
15. Order accordingly.