Kumar vs The State of Tamilnadu

M. Chockalingam, J.—Challenge is made to the judgment of the Additional Sessions Division, Fast Track Court, Dharmapuri made in S.C.

No. 147 of 2007, whereby the sole accused/appellant stood charged u/s 302 IPC, tried, found guilty as per the charge and awarded life

imprisonment and to pay a fine of Rs. 2000/-, in default to undergo one year R.I.

The short facts necessary for the disposal of this appeal can be stated thus:

a) The accused/appellant is the younger brother of the deceased Raghu. They were residing at Marandahalli within the jurisdiction of the

respondent police station. When P.W.1, the Village Administrative Officer of Marandahalli, was in his office at about 8.00 p.m. on 29.01.2005,

the accused appeared before him and gave a confessional statement that he attacked his brother at about 3.30 p.m. in front of the house of P.W.4

and the severely injured was taken to Primary Health Centre, Marandahalli, where he was given initial treatment by P.W.7, the Doctor and

thereafter, he was taken to Dharmapuri Government Hospital, but on the way, he died. The same was recorded by P.W.1, which was marked as

Ex.P.1. P.W.1 prepared his own report, which was marked as Ex.P.2. He produced Exs.P.1 and P.2 along with the accused before the

respondent police station.

b) P.W.14, the Sub Inspector of Police, who was on duty at that time, on receipt of Exs.P.1 and P.2, registered a case in crime No. 45 of 2005

u/s 302 IPC. He also recovered M.O.1, aruval from the accused under a cover of mahazar. Ex.P.19, the F.I.R. was despatched to the Court.

c) A copy of the F.I.R. was placed before P.W.15, the Inspector of Police, who took up the investigation, proceeded to the spot and made an

inspection in the presence of the witnesses. He prepared Exs.P.3 and P.4, the observation mahazars and Exs.P.20 and P.21, the rough sketches.

Then, he conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.22, the

inquest report. The material objects from the place of occurrence were recovered under a cover of mahazar. P.W.15 recorded the statement of

the witnesses. Then, the dead body was sent to the Government Hospital, Palacode for the purpose of autopsy. He also caused the arrest of the

accused, who came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was

marked as Ex.P.13. M.Os.4 and 5, dhoti and shirt of the accused were recovered under a cover of mahazar. The accused was sent for judicial

remand. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department. Ex.P.11, the Chemical

Analyst''s report and Ex.P.12, the Serologist''s report were received.

d) P.W.8, the Doctor attached to the Government Hospital, Palacode, on receipt of the requisition, has conducted autopsy on the dead body of

the deceased and has issued Ex.P.8, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of shock

and haemorrhage due to severed external jugular vein about 18 to 24 hours prior to autopsy.

e) Further investigation was taken up by P.W.16, the Inspector of Police, who on completion of the investigation, has filed final report.

The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the

accused, the prosecution examined 16 witnesses and also relied on 23 exhibits and 7 M.Os. On completion of the evidence on the side of the

prosecution, the accused was questioned u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses,

which he flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced on either side and looking

into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt, found the accused guilty as per the

charge and awarded life imprisonment along with fine and default sentence. Hence this appeal has arisen at the instance of the appellant.

Advancing arguments on behalf of the appellant, the learned Counsel would submit that the entire case of the prosecution is rested upon the

circumstantial evidence; that the prosecution had no direct evidence to offer; that the prosecution mainly rested upon the case on the extra judicial

confession alleged to have been given by the accused to P.W.1, the V.A.O. on the very day of occurrence; that when the entire documents and

also the evidence of P.W.1 are scrutinized, it would clearly speak the fact that they were only false and were created by the Investigating agency to

suit the case of prosecution; that in the instant case, the cause of death was neither proved nor brought forth before the court; that the scientific

evidence was also not supporting the prosecution case; that it is pertinent to point out that M.O.4, dhoti and M.O.5, shirt of the accused were

recovered pursuant to the alleged confessional statement of the accused, but they were cooked up records and created to suit the prosecution

case; that there was no reason as to why the accused appeared before P.W.1, the V.A.O. to speak about the alleged occurrence; that it is not the

case of the prosecution that P.W.1 was known or acquainted to the accused and under these circumstances, such confessional statement could not

be given by the accused as put forth by the prosecution; that though the prosecution came forward to state that the occurrence has taken place in

front of the house of P.W.4 and there was a quarrel, which was spoken by the witnesses, no one has spoken about the incident, but have turned

hostile and thus, it would make it clear that such an occurrence has not taken place and the prosecution has miserably failed to prove its case.

The learned Counsel, in his second line of argument, would submit that, even assuming that the factual position that it was the accused, who

attacked his brother with aruval and as a direct consequence he died, is taken to have been proved by the prosecution, the act of the accused

would not attract the penal provision of murder; that even as per the case of the prosecution, on the date of occurrence, it was the wedding day of

the accused and it was the deceased who gave Rs. 50/- as a gift to the accused, but he demanded for the return of the same in the afternoon and

there was a wordy quarrel and in that wordy quarrel, it was the deceased who beat the accused and under these circumstances, due to quarrel and

being provoked, the accused has attacked the deceased with aruval and thus, the act of the accused would not attract the penal provision of

murder and hence this aspect has got to be considered by this Court.

The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions

made.

It is not in controversy that Raghu, the elder brother of the accused, was actually attacked by the accused and he was given first aid at

Marandahalli Primary Health Centre and thereafter, he was taken to the Government Hospital, Dharmapuri, but on the way he died. Thus,

according to the prosecution, it was the homicidal violence. The fact that the deceased died out of homicidal violence was never disputed by the

appellant before the trial court. Apart from that, in order to prove the same, the prosecution has examined P.W.8, the Doctor, who has conducted

post-mortem on the dead body of the deceased and has issued Ex.P.8, the post-mortem certificate, wherein she has opined that the deceased

would appear to have died of shock and haemorrhage due to the injuries sustained. Hence no impediment is felt by the trial court in recording so

and rightly too.

In order to substantiate that it was the accused who attacked his elder brother Raghu with aruval on his neck and as a direct consequence, he

died, the prosecution had no direct evidence to offer. But, it mainly relied on extra judicial confession made by the accused before P.W.1, V.A.O.

Before accepting the extra judicial confession and to sustain conviction, the court has to apply two tests. Firstly, the circumstances attendant in

which such extra judicial confession was made and secondly, whether the evidence of a person to whom such extra judicial confession was made,

has inspired the confidence of the court. Even after application of the above two tests, the court is thoroughly satisfied that Ex.P.1, the extra judicial

confession has got to be accepted.

Admittedly, P.W.1 is the Village Administrative Officer of the very same place. The occurrence has taken place at about 3.30 p.m. in front of

the house of P.W.4. Though P.W.4 has turned hostile, he has spoken to an extent that there was a quarrel between the brothers and thereafter the

occurrence has followed. The accused has gone to the Village Administrative Officer and has narrated the entire incident and it has been recorded

by him. According to P.W.1, he recorded the extra judicial confession and also prepared Ex.P.2, the report and produced the accused along with

Exs.P.1 and P.2 and the weapon of crime before the respondent police station. All these things are actually found placed in the F.I.R. itself and it

has reached the court within a reasonable time. Thus, the court is of the considered opinion that this piece of evidence placed before the trial court

was actually pointing to the guilt of the accused.

The added circumstance was the scientific evidence. From the dead body of the deceased, M.Os.6 and 7, shirt and lungi were recovered. At

the time of arrest of the accused, he made confessional statement voluntarily, which was recorded under Ex.P.13, pursuant to which, he produced

M.Os.4 and 5, bloodstained dhoti and shirt. All these material objects were subjected to analysis by the Forensic Science Department, which

resulted in Ex.P.11, the Chemical Analyst''s report and Ex.P.12, the Serologist''s report, wherein it has been indicated that all the clothes

recovered from the accused and also from the dead body of the deceased contain the very same blood group, Thus, the scientific evidence was

also in favour of the prosecution. Therefore, these two circumstances, in the considered opinion of the court, would be pointing to the guilt of the

accused that it was he who attacked his brother with aruval and as a direct consequence, the death has ensued.

So far as the second line of argument put forth by the learned Counsel for the appellant is concerned, the court is of the considered opinion that

it has got force. Even as per the prosecution case, it was the wedding day of the accused on the date of occurrence and on that morning, the

deceased gave Rs. 50/- as a gift to the accused, but he demanded the return of the same in the afternoon. When there was a refusal on the part of

the accused, the deceased beat him and following the same, the accused attacked the deceased with aruval. When a gift is made to a person on his

wedding day, no question of demanding for the return of the same would arise. But, unusually, the deceased has made a demand for the same and

there was a quarrel between the brothers in front of the house of P.W.4, which was spoken by P.W.4. In that process, due to sudden quarrel and

provocation, the accused has attacked the deceased. Thus, the act of the accused at no stretch of imagination can be termed as murder, but it

would be one culpable homicide not amounting to murder. Therefore, the act of the accused would attract the penal provision of Section 304 part

I IPC and awarding punishment of 7 years R.I. would meet the ends of justice.

Accordingly, the conviction and sentence imposed on the appellant by the trial court u/s 302 IPC are set aside and instead, the appellant is

convicted u/s 304 part (I) IPC and sentenced to undergo 7 years R.I. The period of sentence already undergone by the appellant is ordered to be

given set off. The fine amount and the default sentence imposed by the trial court u/s 302 IPC shall hold good. With the above modification in

conviction and sentence, this criminal appeal is dismissed.