Polachan @ Poulose vs State

L. Manoharan, J.—Accused was charged u/s 302 IPC for causing the death of Thressiamma, aged 40 at about 6 A.M. on 2-10-1988. Learned additional Sessions Judge, Parur found him guilty of the offence punishable u/s 302 IPC convicted him and sentenced him to undergo imprisonment for life with a direction that the imprisonment in this case "will not be clubbed with the term of life imprisonment In the earlier case i.e. S.C. 114/89". Accused challenges the said finding, conviction and sentence in this appeal. The Crl. R.C. is against the aforesaid direction made by the Sessions Judge. The allegation against the accused was that his father Kochagusthy had illicit relationship with the said Thressiamma on account of which the family life of Kochagusthy become strained. He sold his properties and brought havoc to the family on account of his illicit intimacy with Thressiamma. Therefore, the accused had enmity against Thressiamma. At about 6 AM on 2-10-1988 in the north-eastern court yard of Thressiamma''s house situated in Thuravoor Panchayat, accused beat her on her head with MO-1 repeatedly and caused her death. PW-1, a neighbour who was attracted to the scene on hearing the alarm by PW-2 when reached the scene saw the accused fleeing with MO-1. He found Thressiamma lying dead in a pool of blood. He proceeded to the police station and tendered Ext. P1 F.I. statement before PW-15, Sub Inspector of Police at 7.40 AM on the basis of which he registered Ext. P1(b) F.I.R. u/s 302 IPC against the accused. PW-16, Circle Inspector of Police took over the investigation. He held inquest Ext. P4 to which PW-10 is the attestor. PW-11 conducted the autopsy on the dead body of Thressiamma and issued Ext. P5 postmortem certificate. PW-16 arrested the accused on 6-10-1988 at 3 PM from the Ernakulam South Railway Station. As per Ext. P7(c) information received from the accused he recovered MOS. 2 and 3 lunki and shirt under Ext. P7. He questioned the witnesses, completed the investigation and laid the charge before court. Prosecution examined PWs. 1 to 16, produced Exts. P1 to P10(b) and identified MOs 1 to 7. On the side of the defence DW-1 was examined. Exts. XI and XI (a) were also marked. Accused denied the allegations against him.

Prosecution relies on the evidence of occurrence witnesses PWs. 2 and 3, the evidence of PWs, 1 and 4 to the effect that they saw the accused fleeing from the scene with MO-1, the extra judicial confession spoken to by PWs. 1, 4 and 8 and the evidence, of recovery of MOs. 2 and 3 pursuant to Ext. P 7 (a) information received from the accused to bring home the guilt of the accused.

Learned counsel for the appellant contended that PWs. 2 and 3 are tutored witnesses, that there was no sufficient light to identify the accused and that the extra judicial confession spoken to by PWs. 1, 4 and 8 is unworthy of acceptance. It was also contended that the evidence as to the recovery of MOs. 2 and 3 cannot be accepted in view of the explanation offered by the accused to the effect that his dress got bloodstained when he embraced his father on finding him lying with bleeding injuries. According to the learned counsel, there was hardly any legal evidence to find the accused guilty of the offence.

On the other hand learned Public Prosecutor contended that the scene of occurrence being the court yard of the house of Thressiamma, PWs. 2 and 3, her children are the natural witnesses and the contention that they are tutored in the circumstances cannot be accepted. It was contended that all the witnesses have stated that there was enough light as the occurrence was at about 6 A.M. According to the learned Public Prosecutor PWs. 1 and 4 being immediate neighbours, they too are natural witnesses and since no enmity against the accused or interestedness in the deceased is brought out in their cross examination their evidence has to be accepted. According to the learned Public Prosecutor the evidence regarding the recovery of MOs. 1 and 2 will also corroborate the evidence of other witnesses. Thus the learned Public Prosecutor maintained that the finding, conviction and sentence awarded by the learned Sessions Judge do not suffer from any infirmity.

PW-1 said that at about 5.30 AM on 2-10-1988 the cry of PW - 2 attracted his attention and he rushed to the house of Thressiamma that as soon as he reached there PW - 2 told him that that person is running away after clubbing his mother to death, that he saw the accused fleeing from the scene with MO-1, that he chased the accused to some distance and that he noticed PW - 4 also chasing the accused along with him. He deposed, after some distance the accused turned and said that he clubbed Thressiamma with MO - 1, and then ran away. He said, he proceeded to the police station and tendered Ext. P1 F.I. Statement. He identified MOs. 2 and 3 as the lunki and shirt worn by the accused at that time. His evidence is corroborated by the evidence of PW - 4, another neighbour who also came there on hearing the alarm of PW - 2.

PW - 2 was aged 10 at the time of occurrence. He said that at about 6 AM on the date of occurrence while he was making coffee he heard a sound of beating : he rushed to the door and saw the accused beating his mother with MO- 1. He raised on alarm. Then the accused threatened him with MO - 4 knife which he left at the scene when he bolted from there with MO - 1. He proceeded to swear that his cry brought PWs. 1 and 4 immediately to whom he said that, that person is fleeing away after killing his mother. He also identified MOs. 1 and 4. He said he has seen the accused even before the occurrence. According to him it was the accused who after beating his mother ran away from the scene. PW - 3, the younger child of the deceased was along with her in the court yard. He was aged 7 at the time of occurrence. He deposed to the same effect as PW - 2.

PW - 6 is the daughter of PW-1. She also supported PW - 1 to the effect that a sound of beating and cry attracted her attention and she saw PWs. 1 and 4 chasing another who was fleeing with MO - 1. She identified the accused. She also said that at that time the accused was wearing MOs. 2 and 3. PW-7 is the daughter of the deceased who speaks as to the intimacy of her mother with the father of the accused. PW - 8 is the paternal aunt of the accused. She said that at about 6 AM on the date of occurrence the accused came to her house and wanted tea, and that the accused told her that he has given 2-3 blows on the head of ''prostitute Thressiamma'' and that she might have died.

The evidence of PWs. 1 to 4 and 6 would show that there was enough light there could not have been any difficulty to identify the accused as the occurrence was at 6 A.M. The accused was not a stranger to them.

Though PWs. 2 and 3 are child witnesses and are now being looked after by PW-4 because they became destitutes and orphans on the death of their mother, they withstood the cross-examination; themselves being the children of the deceased and were residing with her, they are the natural and probable witnesses to the occurrence. The impact of the fierce and frightening occurrence that befell on them with spine chilling suddenness is such that the image of the assailant of their mother would get etched into their mind. It could be seen from the evidence of PW-9, the accused is also a neighbour of the deceased. In such circumstance, there is nothing to doubt the identification made by them. As we have pointed out early, nothing material could be brought out in the cross examination to dis-credit their evidence.

The evidence of PWs. 2 and 3 gets enough corroboration from the evidence of PWs. 1 and 4, and also from the evidence of PW-6. Though PW-9 turned hostile to the prosecution he also has admitted to his having seen the accused proceeding through the road in the early hours of 2-10-1988. The testimony of a child witness should not be rejected simply on the ground that on account of his tender age he was likely to be tutored. ( Prakash and another Vs. State of Madhya Pradesh, ). The evidence of PWs 1 and 4 also inspires confidence to be acted upon as their evidence has the ring of truth, and as noticed, they are immediate neighbours of the deceased. It is but natural when the children see their mother being attacked by an assailant they would raise alarm which could attract the attention of immediate neighbours and such persons would rush to the scene. In village life, the urge to extend help to a neighbour in distress is spontaneous. As soon as they reached PW-2, he told them that the accused after clubbing his mother to death is fleeing, they saw him and chased him; we do not see anything to disbelieve their testimony.

What PW-2 told PWs. 1 and 4 as soon as they reached the scene is admissible u/s 6 of the Evidence Act as Res Gestae because the said statement of PW - 2 being immediately after the occurrence should be treated as part of the transaction. The statements of even by-standers witnessing a transaction are relevant if they are made while the transaction is in progress or so shortly before or after it as to form part of the same transaction. The statement to be admissible as Res Gestae should have been made contemporaneously with the act. In other words it should have been made either during or immediately before or after the occurrence. It should not have been after such an intervel from the act as to afford occasion for fabrication. In Corpus Juris secundum, Volume XXXII at page 21 it is stated :

The test of the admissibility of evidence as a part of the res gestae is whether the act, declaration, or exclamation is so intimately interwoven or connected with the principal fact or event which it characterizes as to be regarded as a part of the transaction itself, and also whether it clearly negatives any premeditation or purpose to manufacture testimony.

Again at page 8 of Halsbury''s Laws of England, Volume 17, 4th Edition it is stated :

"Res gestae" is an expression mainly of utility in the criminal law concerning the contemporaneity of statements to incidents but, insofar as contemporaneous statements are relevant and accompany and explain matters in issue, they will be admissible.

The evidence of PW-2 along with that of PWs. 1 and 4 satisfies the said test of Res Gestae and the said statement made by PW-2 to PWs. 1 and 4 is admissible in evidence as part of the same transaction.

PWs. 1 and 4 said that while chasing, the accused turned and said that he had clubbed Thressiamma with MO-1. PW-8 also has deposed that the accused told her that he clubbed Thressiamma with MO-1 and she must have died. When the acceptability of the evidence as to the extra judicial confession is examined in the context of the other evidence to which advertence has already been made, it could be seen that the accused who was actuated by acute malice against the deceased on account of his belief that she was the cause of the misery and havoc to his family made the confession with a sense of accomplishment and cruel satisfaction. His hatred for Thressiamma is revealed from what he told to PW-8, he described Thressimma as a prostitute. PWs. 1 and 4 are his neighbours and PW-8 is his paternal aunt. There in nothing to disbelieve their evidence.

Ext. P7 (c) confession pursuant to which MOs. 2 and 3 were recovered since does not contain the authorship of concealment, is not admissible u/s 27 of the Evidence Act. If at all the conduct of the accused in that regard alone could be admissible u/s 8 of the Evidence Act. As noticed, the other evidence in the case clearly establishes that it was the accused who caused the death of Thressiamma.

PW-11 in his evidence as well as in Ext. P5 said that he noticed 5 injuries; all placed on the head. He said all the injuries were antemortem and the death was due to shock and haemorrhage on account of the injuries sustained to the brain. According to him injuries 1 to 3 and 5 individually and collectively were fatal. He also said that the injuries could be caused by a weapon like MO-1. Thus the medical evidence also corroborates the testimony of PWs. 2 and 3. With due regard to the nature of the weapon and seat of the injuries, it is clear that the offence committed by the accused is u/s 300 IPC. Accused is liable to be found guilty of the offence punishable u/s 302 IPC. Therefore, the finding, conviction and sentence awarded to the accused are only to be confirmed. The Crl. R.C.No. 60 of 1990 is suo motu revision which concerns the direction in the judgment of the Sessions Judge : "It is further made clear that the sentence of imprisonment in this case will not be clubbed with the term of life imprisonment in the earlier case i.e. S.C. 114/89". That was a case in which the same accused was convicted and sentenced to undergo imprisonment for causing the death of his father. The aforesaid direction is liable to be vacated on two grounds. Crl. Appeal No. 127 of 1990 against the conviction and sentence in Sessions Case No. 114 of 1989 has been allowed, that would make the said direction infructuous; and the other is, such a direction is opposed to sub section (2) of Section 427 Cr. P.C. which enjoins that when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. Sub section (1) of Section 427 Cr. P.C. is applicable where an offender who is undergoing a sentence for a fixed terra is subsequently convicted to imprisonment for a fixed term or for life. The said sub-section enjoins, unless the court directs that the subsequent sentence shall run concurrently with the previous sentence, the subsequent conviction to imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced. In other words unless the court otherwise directs, in cases that fall under subsection (1) of Section 427 Cr P.C. the subsequent sentence shall run consecutively. But as per sub-section (2) of Section 427 Cr. P.C. when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. This is obviously because the sentence of imprisonment for life cannot be treated as a sentence for a term so that on the expiry of the term of the first sentence, the subsequent sentence can take effect. The Supreme Court in the decision in Ranjit Singh Vs. Union Territory of Chandigarh and another, considered the scope of Section 427 Cr. P.C. after reviewing earlier decisions on the subject, the Supreme Court held :

Obviously, in cases covered by sub-section (1) where the sentence is for a fixed term, the subsequent sentence can be consecutive unless directed to run concurrently. Sub-section (2), on the other hand, Provides for an offender "already undergoing sentence of imprisonment for life" who is sentenced on a subsequent conviction to imprisonment for a term or for life, it is well settled since the decision of this Court in Gopal Vinayak Godse Vs. The State of Maharashtra and Others, and reiterated in Maru Ram and Others Vs. Union of India (UOI) and Others, that imprisonment for life is a sentence for the remainder of the life of the offender unless the remainder sentence is commuted or remitted by the appropriate authority. This being so at the stage of sentencing by the Court on a subsequent conviction the earlier sentence of imprisonment for life must be understood in this manner and, therefore, there can be no question of a subsequent sentence of imprisonment for a term or for life running consecutively which is the general rule laid down in sub-section (1) of Section 427. As rightly contended by Shri Garg, and not disputed by Shri Lalit, the earlier sentence of imprisonment for lite being understood to mean as sentence to serve the remainder of life in prison unless commuted or remitted by the appropriate authority and a person having only one life span, the sentence on a subsequent conviction of imprisonment for a term or imprisonment for life can only be superimposed to the earlier life sentence and certainly not added to it since extending the life span of the offender or for that matter anyone is beyond human might... The subsequent sentence of imprisonment for life has, therefore, to run concurrently with the earlier sentence of imprisonment for life awarded to the petitioner.

Then the Supreme court proceeded to state that in case, any remission or commutation is granted with respect to earlier sentence of imprisonment for life that cannot affect the later sentence for imprisonment for life. When remission or commutation in respect of the earlier imprisonment for life is granted, the sentence would become a sentence for a term and then the later imprisonment for life would take effect on the expiry of the former sentence. In Ranjit Singh Vs. Union Territory of Chandigarh and another, referred to early there was a direction in the judgment whereby the accused was sentenced to imprisonment for life : "We, therefore, direct that in case any remission or commutation in respect of his earlier sentence is granted to him the present sentence should commence thereafter". With reference to the said direction the Supreme Court said :

This last sentence in the direction means that in case, any remission or commutation is granted in respect of the earlier sentence of life imprisonment alone then the benefit of that remission or commutation will not ipso facto available in respect of the subsequent sentence of life imprisonment which would continue to be unaffected by the remission or commutation in respect of the earlier sentence alone. In other words, the operation of the superimposed subsequent sentences of life imprisonment shall not be wiped out merely because in respect of the corresponding earlier sentence of life imprisonment any remission or commutation has been granted by the appropriate authority.

Thus the position is clear that as per Section 427 (2) Cr. PC when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. Any remission or remittance granted by the appropriate authority to one of the sentences of imprisonment for life will not effect the other sentence of imprisonment for life. The Crl. R.C. is dispossessed of as indicated above.

In the result the finding conviction and sentence awarded to the appellant/accused are confirmed. The direction by the lower court that the sentence of imprisonment in this case "will not be clubbed with the term of life imprisonment in the earlier case i.e. S.C. 114/59" is vacated. The Crl. Appeal is dismissed as indicated above.