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Judgment
N. Paul Vasantha Kumar, J.—Appellant is accused in S.C. No. 245 of 1998, in the Court of Principal Sessions Judge, Madurai. He challenges his conviction u/s 302 IPC and the life sentence.
For the sake of convenience, throughout this judgment, we shall describe him as accused.
The prosecution case in brief is as under:
(i). Muthuirulan (PW3) and Sundaram are brothers. Sundaram and Avudaiyammal are spouses. Their son is Karuppaiah. After Sundaram''s death Avudaiyammal married PW3. They have brought up Karuppaiah. PW3''s another brother''s son is Muniyandi (PW4). PW3''s another brother''s son is accused Gurusamy. Selvakani (PW1) married PW3''s son Ganesan. All are residing in nearby houses in Keelapatti, near Peraiyoor, in Madurai District.
(ii) Near PW1''s house, there is a vacant site. PW3 says that it was purchased by his father from Velaimmal''s husband, so it belongs to him. However, accused says that it belongs to him since he purchased it. On account of this, there was enmity between both sides.
(iii) In the circumstances, on 6.10.1997, at about 8.30 a.m., quarrel arose between both sides with regard to putting up of a fence around the disputed site. PW5 Moorthi, President came. PWs3, 4, Karuppaiah and the accused were present. PW5 mediated the matter. But, no settlement. PW5 left after advising them.
(iv) Shortly, thereafter, around 10.30 a.m., Karuppaiah was standing before his house. At about mat time, the accused came, assaulted him on his neck, with MO1 Vangaruval. PWs1 and 2 witnessed this. Karuppaiah fell dead. PW4 seen the accused standing with MO1. The accused ran away.
(v) PW1 gave Ex. P1 statement to PW6 Ramar, VAO, Keelapatti. It was attested to by PW3.
(vi) At about, 12 noon, at the Peraiyoor Police Station, PW6 produced PW1 with Ex. P1 and his letter Ex. P3 to PW10 Muthuvel, Head Constable. He registered a case in Crime No. 204 of 1997 u/s 302 IPC, sent the Express First Information Report (Ex. P8) to the Judicial Magistrate Court, Usilampatti and also sent a copy of it to PW12 Parameswaran. Inspector of Police, Sedapatti, who was holding additional charge of Peraiyoor Police Station.
(vii) At about 12.45 p.m. PW12 commenced investigation. At the scene place, in the presence of PW7 Ooran, Nattamai and one Devaraj, PW12 prepared Ex. P4 observation mahazar, drew Ex. P14 site-plan, recovered MO2 blood-stained sand and MO3 plain sand under Ex. PS mahazar. At about 1.30 p.m., in the presence of panchayatdhars, held Inquest over the dead body. (Ex. P15 inquest report) and sent the dead body through PW9 Constable Ramanathan with Ex. P9 requisition to the Government Hospital, Thirumangalam for autopsy. PW12 examined the material witnesses and recorded their statement.
(viii) On 7.10.1997, at the said Government Hospital, at about 11 a.m., PW2 Dr. Malini, conducted post-mortem on the dead body of Karuppaiah and found the following:
Injury below the level of mandible and above the level of the Hyoid extending from 2 cm below the mastoid on the right to the area on the left 4 cm, below the left mastoid region. Occipital covelytes were visible and the atlas was dislocated from the joint. The larynx the esophagus the lower vessels and nerves and the muscles on the side of the neck were severed. The head was in continuity with the neck and the back by the skin faces muscles at the back of neck.
(ix) On 8.10.1997, at about 4 p.m., near B-Thotiapatti, in the presence of PW8 Ramachandran, VAO and his Assistant Vembuli, PW12 arrested the accused. He gave Ex. P6 confessional statement. In pursuance of that, from a place near Sundaralingam Kanmai, in Keelapatti, accused produced MO1 blood-stained Vangaruval and MO4 blood-stained lungi. PW12 seized them under Ex. P7 mahazar. Sent the accused to court for custody Produced the case properties to the chemical Lab through Court (Ex. P10 Court''s letter). Received Ex. P11 to P13 Chemical and Serologists reports. Re-examined PW2. She opined that the deceased would appeared to have died of injury on his neck 22 to 26 hours prior to autopsy and the injury is possible by a weapon like MO1 and the injury was sufficient in the ordinary course to cause death. Concluding his investigation, PW12 filed the Final Report for an offence u/s 302 IPC.
To sustain the charge u/s 302 IPC, prosecution examined PWs1 to 12, marked Exs. P1 to P15 and exhibited MOs1 to 6.
When the accused was examined on the incriminating aspects in the prosecution evidence, he denied his complicity. He did not let in any evidence.
Placing reliance on the evidence of eyewitnesses, other evidence and material objects, on 7.9.2000, the learned Principal Sessions Judge, Madurai, concluded that the accused had killed Karuppaiah with M.O.1, thus, found him guilty u/s 302 IPC and sentenced him to life.
Mr. T.K. Gopalan, learned counsel for the appellant submitted that prosecution has not established the charge against the accused beyond all reasonable doubts. Detailing his submissions, the learned counsel submitted as under:
(i) Already bad blood was brewing between both sides on the land issue. PW4 supported the deceased. On the occurrence day, when quarrel arose, PW4 came drunk, attempted to assault the accused, however, it accidentally fell on the deceased and thus he died.
(ii) PWs1 and 3 are closely related to the deceased. They are highly interested. Their evidence cannot be believed.
(iii) The First Information Report is shrouded in mystery The evidence of PWs1 and 3 discloses that even prior to PW1 giving Ex. P1 statement to PW6 VAO, Police was in the scene Village and have obtained a complaint from her, however, burked it. The genesis of the crime is suppressed. FIR is fabricated. There is unexplained delay in lodging the FIR and also handing over it to Court.
(iv) Actually, the occurrence place is at the disputed land.
(v) PW1''s evidence that the accused had assaulted the deceased from back has been falsified by the evidence of post-mortem Doctor.
(vi) The several admissions in favour of defence version obtained from the prosecution witnesses were not considered by the trial Court.
(vii) There need not be any specific plea or evidence as to the defence version, it can be set up during the course of trial and culled out from the prosecution evidence itself without any independent evidence being let in. However, the trial Court ruled otherwise.
(viii) PWs3, 4 and the deceased are aggressors. They high handedly removed the fence put by the accused from the land. This is the reason for the quarrel and the occurrence. It is not pre-planned. It arose suddenly. In the circumstances, this case will not fall u/s 302 IPC.
Mr. R. Ramachandran, learned Additional Public Prosecutor submitted as under:
(i) Motive for the occurrence has been established by overwhelming evidence. The eyewitnesses PWs1, 3 and also PW4 testified to the occurrence proper. There is Section 27 Evidence Act recovery of weapon/MO1. The medical evidence is supportive of oral evidence. Prosecution has proved its case beyond all reasonable doubts. It is Out and out a murder.
On 6.10.1997, around 10.30 a.m., in his Village, Keelapatti, the dead body of Karuppaiah was found with cut injury on his neck. He suffered homicidal death.
According to the prosecution, due to prior enmity, the accused had killed him with MO1 Vangaruval.
This case is based on the evidence of eyewitnesses. They are PWs1 and 3 Selvakani and Muthuirulan. They are brother''s wife and stepfather to the deceased.
In Sarwan Singh and Others Vs. State of Punjab, a three Judge Bench of the Hon''ble Apex Court, while considering the evidence of an interested witness held as follows:
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.
The fact of being a relative cannot by itself discredit the evidence. In the abovesaid 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. The Hon''ble Supreme Court in the abovesaid case Sarwan Singh v. State of Punjab, (1976) 4 SCC 369, SCC p. 379, 16) held as follows.
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.
In Balraje @ Trimbak Vs. State of Maharashtra, 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 in the following manner (SCC p. 679, para 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.
In Prahalad Patel Vs. State of Madhya Pradesh, the Hon''ble Supreme Court held that: (SCC p. 265).
Though PWs2 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 Vs. State of U.P., and State of U.P. Vs. Naresh and Others, .
In State of U.P. Vs. Naresh and Others, , the Hon''ble Apex Court emphasised that relationship cannot be a factor to affect the credibility of a witness. The following statement of law on this point is relevant: ( SCC p.334, 29).
The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives'' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible, (vide Jarnail Singh and Others Vs. State of Punjab, and Balraje @ Trimbak Vs. State of Maharashtra,
Thus, it is not that a conviction cannot be rested on the evidence of closely related witnesses. If their evidence is cogent, convincing and does not suffer from any infirmity, conviction can be safely recorded on their evidence.
A small piece of land situate near PW1''s house became a grave concern for both sides. There was rival claim by both sides. PW3 claimed that his father had purchased it from Velammal''s husband. Accused also staked claim to it on similar ground.
On 6.10.1997, at about 8.30 a.m., quarrel arose between the accused and PW3 Muthuirulan, when the accused put up a fence around the disputed site. Deceased. Karuppaiah brought PW5 Moorthi, the Village President. He mediated. But, he was unsuccessful. He pacified them. Asked them to keep cool till the evening and again it could be discussed. Then, he left. The evidence of PWs1 and 3 to 5 Selvakani, Muthuirulan, Muniandi and Moorthi shows this. This first incident has nexus with the next incident, namely, the occurrence proper.
It is the evidence of PW1 that at about 10.30 a.m., Karuppaiah was standing outside his house, at that time, accused came from the southern side, assaulted Karuppaiah on his neck with MO1 Vangaruval, he sustained cut injury on his neck and fell dead. PW3 also stated so. PW4 Muniyandi who is residing closely stated that on hearing his alarm, he came there, seen the accused standing with MO1. He is after occurrence witness. These vital aspects are also mentioned in Ex. P1 complaint.
During the cross-examination of PWs1 and 3 attempt had been made to show that at the time of occurrence, they were not in their houses. No doubt, they are poor agricultural workers used to work in the lands, their cross-examination revealed that on that day, they were in their houses. Then PW1 since pregnant, was staying in the house. PW3 who was then aged about 60 years old had clearly stated that on that day, he was in his house. In their cross-examination, PWs1 and 3 have clearly stated that they have witnessed the occurrence.
Peraiyoor Police Station can be reached within fifteen minutes walk from Keelapatti. PW6 Ramar, VAO was residing in Aranmanai Village. It is about 2 furlong from Keelapatti. After the occurrence, at Aranmanai, PW1 gave Ex. P1 statement to PW6. PWs1, 3 and 4 were then not wearing wrist-watches. They gave rough estimation of time.
The occurrence was around 10.30 a.m. Only after that, PW1 lodged Ex. P1. Cross-examination of PW1 reveals that PW6 visited the scene place along with PW1. By the time, PW10 Muthuvel, Sub-Inspector also came. Naturally, he has to verify with PW1. PW6 took PW1 to Police Station. FIR was registered at about 12 noon. Over phone, PW5 also informed the police. PW10 sent message to PW12 Inspector Parameswaran. He received it at Madurai. So, when PW12 visited the scene place, it was about 12.45 p.m. The inquest was also after that.
In Ex. P1, PW3 has affixed his thumb impression as attestor. In his cross-examination, he had stated that he did not go to PW6''s house. He did not say that he did not visit Aranmanai. He did not say that he had not affixed his thumb impression in Ex. P1. Thus, the FIR is not doubtful.
The first incident took place in the disputed place since PW3 and the deceased were present there and objected to the accused putting a fence. The next incident of accused assaulting the deceased took place when the deceased was standing in front of his house. Evidence of PWs1, 3 and 4 reveals this. There is no confusion as to the occurrence place.
The injury was on the neck of the deceased. The weapon is MO1, a vangaruval, a small billhook tied to a stick. No doubt, at the time of occurrence, the deceased was standing on the eastern side and the accused came from the southern side, thus, the assault would have been originated from behind the deceased. But the weapon is not a mere knife. It is tied to a long pole/stick. If it is used in a slanting manner, the injury found on the deceased is possible. Moreover, there is evidence of eye-witnesses as to the manner of the assault and the using of MO1 by the accused. Therefore, we do not find any variation as between the oral evidence and the medical evidence.
As rightly pointed out by the learned counsel for the accused that the accused need not plead specifically as to his defences such as private defence etc., he need not let in independent evidence to establish his version, he can cull out the evidence in support of his version from the prosecution evidence itself. But, the defence theory that PW4''s attempt to assault the accused accidentally fell on the deceased remained only in theory, no solid basis backed by any iota of evidence.
PWs1 and 3 are consistent, natural and cogent. Their evidence does not suffer from any major infirmity. There is no acceptable reason to reject their evidence. They are trust worthy. Their evidence can be acted upon.
Considering all the above aspects, we are coming to the irresistible conclusion that the prosecution has established beyond all reasonable doubts that the accused had killed Karuppaiah. We concur with the finding recorded by the trial Court.
Now, we proceed to see what offence is made out, whether it is murder u/s 300 or culpable homicide not amounting to murder under Exception-1 to Section 300 Indian Penal Code.
There was strained relationship between both sides. It is because of the land dispute. Cross-examination of PWs1 and 3 reveals that the accused has been in possession. PW7 Ooran, the Nattamai stated that the land belongs to the accused, he and PW5 also advised the deceased not to remove the fence put up by the accused. PW4 was particular that the fence has to be removed. The deceased and PW3 removed the fence. PW1 also resented to this. Then, the accused was also present. The deceased and the accused wrestled. Shortly, thereafter, the deceased was standing before his house. Then the accused suddenly picked up MO1 from his house, hurriedly came, scolded the deceased and assaulted him with MO1. There was no huge time gap between the first and the second incident. It was sequel to the excess committed by the deceased and PW3. The accused had lost his power of self-control. Then, he was not the master of his mind. He acted in a spur of moment. He acted out of anger and heat of passion. There was no pre-meditation.
PW2 had stated that the injury was sufficient to cause his death in the ordinary course. The injury was on his neck. The weapon of offence was MO1. So, it is an intentional act. In the facts and circumstances, it will fall under Exception 1 to Section 300 IPC. It is culpable homicide not amounting to murder u/s 304 part-I IPC.
The accused is now aged about 62 years. He is the sole bread winner of the family. He is not affluent. He is a poor agricultural coolie. But, he has killed a person. In the result.
(i) The Criminal Appeal is allowed in part.
(ii) Appellant''s conviction u/s 302 IPC and the life sentence imposed on him are set aside.
(iii) Instead, he is convicted u/s 304, Part-I, IPC.
(iv) He is sentenced to seven years rigorous imprisonment and fined Rs. 1,000, in default, undergo six months rigorous imprisonment. The fine amount shall be paid in the trial Court.
(v) He is given set off u/s 428 Cr.P.C.
(vi) His bail bond shall stand cancelled.
(vii) The learned Principal Sessions Judge, Madural will take immediate steps to apprehend him and send him to jail to serve his remaining period of sentence.