Madras High Court
Tirupathi vs State Of Rep. By on 2 September, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan, J.Sathya Narayana Prasad
2024:MHC:3311
Crl.A.(MD)No.86 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.09.2024
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
AND
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
Crl.A(MD)No.86 of 2021
Tirupathi ... Appellant
vs
State of Rep. by
The Inspector of Police,
Krishnankovil Police Station,
Virudhunagar District.
Crime No.142 of 2010. ...Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code, to admit this appeal and call for the records relating to the
judgment dated 21.11.2019 in S.C.No.21 of 2011 on the file of the Principal
District and Sessions Judge, Srivilliputhur and set aside the same by
acquitting the appellant and allow this Criminal Appeal.
For Appellant : Mr.S.Mayaperumal
For Respondent : Mr.S.Ravi
Additional Public Prosecutor
*****
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Crl.A.(MD)No.86 of 2021
JUDGMENT
The accused, Tirupathi, son of Gurusamy, who had been
convicted and sentenced for commission of offence punishable under
Section 302 IPC by the Principal District and Sessions Court, Virudhunagar
District at Srivilliputhur and sentenced to undergo Life imprisonment and
fine of Rs.10,000/- in default, one year Simple Imprisonment in S.C.No.21
of 2011 by judgment dated 21.11.2019, has filed the present Criminal
Appeal.
2. The appellant/accused and his wife P.W.7/Muneeswari were
residing at Panankulam in Virudhunagar District. It is the case of the
prosecution that the appellant suspected his wife/Muneeswari (P.W.7) to
have illicit relationship with Muthukaruppan, the deceased.
2.1. It is the further case of the prosecution that owing to this
allegation, there were frequent quarrels between the accused and his
wife/Muneeswari (P.W.7).
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2.2. It had also been stated that three months prior before the
incident complained of in this case, in the night at 9.00 p.m., the accused
had seen the deceased Muthukaruppan coming out of his house and had
picked up a quarrel with the deceased Muthukaruppan.
2.3. It is further stated that on 29.06.2010 at around 11.45 p.m.,
when the accused went to his house and knocked at the door,
Muthukaruppan came rushing outside from the house wearing a lungi. The
accused then picked up a wooden stick measuring about 2 ½ feet in length
and chased Muthukaruppan and hit him on his head and on the scalp.
Muthukaruppan fell down and died. Accordingly, the accused was charged
with commission of offence punishable under Section 302 IPC.
2.4. The accused denied the charge and claimed to be tried.
Accordingly, the prosecution examined P.W.1 to P.W17 witnesses and
marked Exhibits Ex.P.1 to Ex.P16 documents. The prosecution also
produced the M.O.1 to M.O.6 material objects.
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2.5. On conclusion of trial, the accused was questioned under
Section 313 Cr.P.C. and his statements were recorded. The learned Trial
Judge/ Principal District and Sessions Judge, Virudhunagar District at
Srivilliputhur, had found that the charge had been proved beyond
reasonable doubt and therefore, convicted the appellant for offence
punishable under Section 302 IPC and sentenced him to undergo Life
imprisonment and fine of Rs.10,000/- in default, simple imprisonment for a
period of one year. Questioning such conviction and sentence, the present
appeal had been filed.
3. The prosecution to prove the charges had examined P.W.
1/Kandhan, the father of the deceased. In his statement, he stated that
normally in the night hours at around 9.00 p.m., his son Muthukaruppan
would come home to eat dinner but on 29.06.2010, he did not come to eat
dinner and therefore, he (the witness) along with P.W.2, who is his other
son went in search of Muthukaruppan.
4. At that time, they heard a cry and when they ran towards that
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particular direction, they saw the accused/Tirupathi hitting Muthukaruppan
on the head with a (cUl;L fk;g[) (wooden stick). He also saw his son falling
down. He further stated that even after he fell down, the accused/Tirupathi
hit his son all over his body and there was a blood flow. He stated that he
and his other son/P.W.2 went to the place of occurrence. They found
Muthukaruppan dead.
5. In this connection, the father of the deceased/P.W.1 had
given a complaint to the Krishnankovil Police Station by around 1.30 a.m.
in the night. The complaint was marked as E.P.1. The police also came there
at 1.30 a.m. and he was also examined. The body was taken in an
Ambulance to the Government Hospital.
6. This witness is said to be a direct eye witness for the
incident. The witness was also cross-examined and during cross-
examination, he stated that around 9.00 p.m., he had heard a big noise and
when he went to that particular place, he saw the accused hitting his son. He
denied that there was an illicit relationship between his son and the wife of
the accused for the past six years. He stated that in his complaint he had
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never stated that his son had a relationship with the wife of the accused. He
also stated that he had been examined by the Investigating Officer and his
statement had been recorded.
7. The prosecution further examined P.W.2, Guruvaiah, who is
the brother of the deceased and the other son of P.W.1. He stated that on
29.06.2010, in the night at 11.45 p.m., he and P.W.1 and Karuppasamy, son
of Vellaiyan and Karuppasamy, son of Mariappan, were all talking together.
At that time, they heard a cry calling out. They went running towards the
direction where they heard the sound. They saw the deceased
Muthukaruppan running, wearing only his lungi and behind him, the
accused chasing him. Thereafter, he stated, that he saw the accused hitting
Muthukaruppan on the left hand side of the head and thereafter, on all the
places in the head. He stated that Muthukaruppan fell down and the accused
ran away along with the stick.
8. Thereafter, they had given a complaint to the Krishnankovil
Police Station. He was also examined by the respondent Police. During
cross-examination, he denied that at that particular time, the wife of the
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accused was present.
9. These two witnesses were the prime witnesses who had been
examined by the prosecution to prove the charge against the accused, that
accused chased the deceased with a wooden stick in his hand and hit the
deceased on his left side head and when the deceased fell down, he caused
further blows on the deceased causing instant death.
10. The prosecution also examined Karuppasamy, son of
Mariappan and Karuppasamy, son of Vellaiyan as P.W.3 and P.W.4
respectively. They had been mentioned by P.W.2 as having witnessed the
occurrence. However, they did not support the case of the prosecution and
were declared hostile.
11. Thereafter, the complaint Ex.P.1 given by P.W.1 and P.W.2
was taken on record by P.W.16/Tmt.Anitha, Sub-Inspector of Police, who
had registered the FIR. In her evidence, she stated that on 30.06.2010, she
was incharge S.I. at Krishnankovil Police Station and in the early morning
at around 1.30 a.m., Kandhan (P.W.1) came over to the Police Station and
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lodged the complaint.
12. On the basis of the complaint, P.W.16 registered FIR in
Crime No.142 of 2010 under Section 302 IPC. She then forwarded the First
Information Report and the complaint to the Judicial Magistrate No.1,
Srivilliputhur, through Head Constable Marikrishnan, by express tapal. The
witness, P.W.16, identified the First Information Report as Ex.P.14.
13. Thereafter, further investigation was taken over by P.W.
17/Ramasamy, who was the Inspector of Police at Srivilliputhur Taluk
Police Station. He examined the First Information Report in Crime No.142
of 2010 registered under Section 302 IPC. He went over to the scene of
crime and in the presence of witnesses Sundar, the Village Administrative
Officer and Kannan, the Village Assistant, in the morning at 2.30 a.m., in
the light which was available, prepared the observation mahazar and also a
rough sketch. The rough sketch was marked as Ex.P.15.
14. Thereafter, he conducted the inquest over the dead body in
the presence of Panchayathars between 3.00 a.m. and 5.00 a.m. The inquest
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report was marked as Ex.P.16. Thereafter, he sent the body of the deceased
for postmortem through Head Constable No.1647. He then recorded the
statements of the witnesses Kandhan (P.W.1) and Guruvaiah (P.W.2) and
Periyakaruppan (P.W.5). He also recorded the statements of P.W.3 and P.W.
4, who are both called Karuppasamy (both turned hostile) and also Kannan
(P.W.9). He also recorded the statement of Muneeswari/P.W.7 (declared
hostile) (wife of the accused). He also recorded the statements of Sundar,
the Village Administrative Officer (not examined) and Kannan, the Village
Assistant (P.W.9). He also recorded the statements of witnesses Muniandi
(not examined), Murugan (P.W.11), Mahalingam and petchiammal (both not
examined).
15. On 30.06.2010, in the morning at 5.00 a.m., he collected
the blood stained sand (M.O.3) from the scene of crime and also the sand
without blood stain (M.O.4). He took into custody the accused on
30.06.2010 in the evening at 4.00 p.m., in the presence of Sundar, the
Village Administrative Officer and Kannan, the Village Assistant (P.W.9).
He recorded his confession statement (Ex.P.6). The accused in his
confession statement (Ex.P.6), disclosed where he had kept hidden his
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clothes and the 2 ½ feet wooden stick which he had used for the
commission of the offence. That was also recovered in the presence of the
witnesses. The blood stained wooden stick was marked as M.O.1 and his
shirt, which was also blood stained was marked as M.O.5.
16. P.W.17 seized the material objects under Form – 91 and
forwarded the same to the jurisdictional Magistrate Court. He also
forwarded the blood stained wooden stick (M.O.1) and blood stained shirt
(M.O.5) worn by the accused for forensic examination through proper
channel and under letter. He then sent the body of the deceased for
postmortem and examined Dr.Ganesh Babu (P.W.15), who conducted the
postmortem.
17. On 28.07.2010, he received the certificate from forensic
laboratory and also examined the forensic science expert Vairamuthu (P.W.
12). On 16.08.2010, he recorded the statement of Karupaiah (P.W.8) from
the Electricity Department who stated that street light was available and
electricity was available at the time of the incident. On 06.10.2010, P.W.17
completed the investigation and filed final report charging the accused with
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commission of offence punishable under Section 302 IPC.
18. The learned Judicial Magistrate No.II, Srivilliputhur, had
taken cognizance of the final report as P.R.C.No.36 of 2010 and served the
relevant copies under Section 207 Cr.P.C. free of cost to the accused.
19. Thereafter, since it was an offence punishable under
Section 302 IPC, which was triable exclusively by a Court of Sessions, he
committed the case to the Principal District and Sessions Court,
Virudhunagar District at Srivilliputhur. The same was taken on record as
S.C.No.21 of 2011.
20. In conformity with the investigation conducted, quite apart
from P.W.1 and P.W.2, during trial, the prosecution in order to prove the
recovery had also examined the Village Assistant, Kannan (P.W.9), who
was witness for the preparation of observation mahazar and the rough
sketch. The prosecution also examined P.W.7, Athmanesan, the
photographer who took photos of the scene of crime and of the body. The
photos taken by him were produced as material objects and taken on record
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by the learned Sessions Judge as M.O.6 (9 photographs).
21. The prosecution also examined P.W.11, Murugan, from the
Magistrate Court to speak about the forwarding of letters for forensic
examination of the material objects. The scientific officer from the forensic
department (P.W.12) was also examined. The certificates were marked as
Ex.P.9, P.10 and P.11.
22. As pointed out earlier, the only charge which was framed
against the accused was under Section 302 IPC. The accused denied the
charges and claimed to be tried. The nature of evidence which was produced
by the prosecution had been narrated above. The learned Sessions Judge on
appreciation of the evidence produced had observed that on 29.06.2010,
since the deceased Muthukaruppan did not come home for dinner, P.W.1
and P.W.2 had gone in search of the deceased and at around 11.45 p.m.,
they heard a loud noise and when they went in that particular direction, they
saw the deceased Muthukaruppan running wearing his lungi and behind
him, the accused chasing him with M.O.1 – wooden stick. They deposed
they saw the accused hitting the deceased on the head causing the deceased
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to fall down and thereafter the accused had continued to hit the deceased
causing instant death.
23. The learned Sessions Judge had further observed that P.W.
1 and P.W.2 had directly witnessed this particular incident. The learned
Sessions Judge also pointed out in this connection, that a complaint Ex.P.1
had been lodged before the Krishnankovil Police Station, as a result of
which, the First Information Report had been registered without any delay at
around 1.30 a.m. and the the First Information Report and the complaint had
been forwarded to the jurisdictional Magistrate, who also received it in the
early morning at 3.30 a.m. Therefore, the learned Sessions Judge was of the
opinion that the sequence of events had no interruption and that
immediately after the occurrence, the complaint (Ex.P.1) had been lodged,
the FIR (Ex.P.14) had been registered and also forwarded to the
jurisdictional Magistrate.
24. The learned Sessions Judge also noted the nature of injuries
stated by Dr.Ganesh Babu (P.W.15), who had conducted the postmortem
and had issued the postmortem certificate (Ex.P.13). A persual of Ex.P.13
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would show that there were six injuries;
(i) Deformed face and scalp
(ii) Lacerated injury left forehead ('x' 2 x 2 cm bone deep)
(iii) Lacerated injury left eyebrow 5x2x2 cm (bone deep)
(iv) Lacerated injury left side mabilia 5x3x1 cm (bone deep)
(v) Lacerated injury right side upper lip 3x2x1 cm
(vi) Lacerated injury right orbit with fracturing 5x2x2 (bone deep).
25. The case of the prosecution, rather than the case advanced
by the learned Additional Public Prosecution before the Trial Court was that
the deceased had illicit relationship with the wife of the accused. On that
fateful night, 29.06.2010, the accused came to the house at 11.30 p.m. in the
night and knocked at the door. The deceased ran out wearing his lungi. This
naturally intensely provoked the accused. The accused chased the deceased
and with the available stick caused him an injury in the head. An argument
was advanced that most of the injuries were in the front side of the forehead,
on the eyebrows, on the nose and on the lips, which could probably have
been caused by a fall on the ground and could not have been caused by the
accused. However, the learned Sessions Judge did not take that particular
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explanation into consideration and proceeded to convict the accused under
Section 302 IPC.
26. Heard arguments advanced by Mr.S.Mayaperumal, learned
Counsel appearing for the appellant and Mr.S.Ravi, learned Additional
Public Prosecutor appearing for the respondent.
27. Mr.S.Mayaperumal, learned Counsel for the appellant
pointed out the extreme nature of provocation which was suffered by the
appellant on finding, at 11.45 p.m. in the night, the deceased running out of
the house of the accused wearing a lungi in which house his wife (the wife
of the accused) was staying. It had been argued by the learned Counsel that
this extreme provocation caused the accused to chase the deceased. He had
a stick in his hand which was a very small about 2 ½ feet alone in length. It
is the contention of the learned Counsel that while running, the deceased
had fallen on the ground thereby causing self injuries on the forehead, on
the eyebrows, on the nose and on the lips and therefore, the learned Counsel
contended that the accused had not caused the injuries which led to death of
the deceased. The learned Counsel, therefore, urged that this Court should
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consider this offence as culpable homicide, not amounting to murder and
further, even if it is considered as culpable homicide and that it was the
appellant who was culpable for the death of the deceased there was no
intention to cause death, but rather only to cause hurt and certainly not
death. It had also been pleaded that this Court should view the evidence
accordingly.
28. The learned Counsel for the appellant also placed reliance
on a judgment reported in (2009) 16 SCC 361, Felix Ambrose D'souza -vs-
State of Karnataka, wherein, the Hon'ble Supreme Court had examined
homicide under sudden provocation on the spur of a moment and when
there was no premeditated plan or intention. It was held by the Hon'ble
Supreme Court that the conviction should have been only under Section 304
part II IPC and accordingly had set aside the order of conviction under
Section 302 IPC and convicted the appellant therein for offence punishable
under Section 304 part II IPC to rigorous imprisonment for four years.
29. Mr.S.Ravi, learned Additional Public Prosecutor, however
denied and disputed the contentions raised on behalf of the appellant. The
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learned Additional Public Prosecutor pointed out that there were very deep
and serious injuries on the scalp of the deceased which could not have been
caused by a normal fall even by a running person. He further pointed out
that the injury on the left side of the head was bone deep and stated that
such injuries could only have been caused by a very fierce blow by a stick
or by a log and stated that the only person who had intention to commit such
an offence was the accused and none other.
30. The learned Additional Public Prosecutor also pointed out
that though there was provocation as is evident from the records, still the
nature of reaction by the accused was disproportionate to the nature of
provocation caused. He also pointed out the evidence of P.W.1 and P.W.2,
who stated that they had directly witnessed the incident. He pointed out that
it was only natural they were present in the scene of occurrence since the
deceased had the habit of coming home to eat dinner at 9.00 p.m. and since
he did not come, they had gone searching for him and on hearing a loud
noise, had run to the place and saw the accused chasing the deceased and
hitting him on the head as a result of which the deceased fell down.
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31. The learned Additional Public Prosecutor also pointed out
that the prosecution had examined P.W.7, an employee of the Electricity
Board who stated that there was no power cut in that particular area and
there was also sufficient light in that particular place of occurrence. The
learned Additional Public Prosecutor however stated that it is also the case
of the prosecution that the deceased had an illicit relationship with the wife
of the accused and there was also an earlier incident of similar provocation
as is seen from the charge framed against the accused. He also pointed out
the recovery of wooden stick with blood stain (M.O.1), recovery of blood
stained shirt worn by the accused (M.O.5) and argued that these would point
out that the stick was used by the accused for the offence and causing blood
stains on his shirt. However, he pointed out that the blood group was not
able to be identified or matched with the blood group of the deceased.
32. The learned Additional Public Prosecutor pointed out that
there had been a clear sequence of incident from the time when the accused
knocked at the door of his house at 11.45 p.m. in the night on 29.06.2010, to
the deceased running away wearing lungi, the accused chasing him with the
stick, P.W.1 and P.W.2 witnessing that in the light which was available, the
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accused hitting the deceased on the head, the deceased falling down dead at
that place itself. He also pointed out that immediately thereafter the
complaint had been lodged, First Information Report had been registered
and the same had been forwarded to the learned Judicial Magistrate No.II,
Srivilliputhur.
33. It was therefore contended by the learned Additional Public
Prosecutor that the sequence was straight forward and the prosecution had
established that the deceased died of homicide and there was no other
possibility but that the homicide was caused only by the accused and none
else. The nature of injuries showed that the accused had intention to cause
death and it was therefore argued that though there an arguable point had
been raised on behalf of the accused for the offence being brought under
Section 304 part II IPC, the learned Sessions Judge could not be faulted for
having convicted the accused for offence punishable under Section 302 IPC.
34. We have carefully considered the arguments advanced and
perused the material records.
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35. The accused is married to P.W.7 (Muneeswari). It is the
case of the prosecution, and this fact is not disputed, that Muneeswari (P.W.
7) unfortunately had cultivated an illicit relationship with the
deceased/Muthukaruppan, who is a resident of the same village Panankulam
in Virudhunagar District. As a matter of fact, three months prior to the
incident, the deceased was seen coming out of the house of the accused at
9.00 p.m. and there was a wordy quarrel between them.
36. On 29.06.2010, at around 11.45 p.m. in the night, when the
accused came back to his house and knocked at the door, the deceased ran
out wearing only a lungi. It is only natural that any husband who sees
another male person who had earlier also entered the house at night time,
running out of his house inhabited by his wife, would get infuriated and
extremely agitated and would loose control of his normal senses, and would
naturally react in a hostile manner. The accused also reacted in that manner.
He was the husband of Muneeswari (P.W.7). She was staying in the house.
From that house at 11.45 p.m., the deceased ran out wearing only a lungi.
This is a direct provocation caused on the accused. In the face of such
provocation, it was only a natural reaction to chase the deceased and under
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such extreme provocation, also lash out at him with any available object.
The available material object was M.O.1, a wooden stick of 2 ½ feet.
37. It is the case of the prosecution that P.W.1 and P.W.2 saw
the accused chasing the deceased and hitting him on the head and the
deceased falling down. We hold that this act of the accused was a direct
result of extreme provocation. In the middle of the night, the deceased had
been in the house of the accused along with the wife of the accused. When
he ran out wearing only a lungi, it is only natural that this would invite a
hostile reaction from any person and in this case, from the accused. He had
chased the deceased and had hit him on the left side of the head. The
deceased fell down. The only question to be answered by us is whether there
was intention to cause death or not. The object with which he had caused
injury, is not an object which would in normal circumstances, if hit on a
person would cause death. It must also to be pointed out that the deceased
was running at speed and the accused was chasing him. Naturally any blow
which is hit, even without any intention would be a hard blow on the person
on whom it is aimed at, in this case, on the deceased. Further, the mind of
the accused must have been much agitated at having seen the deceased
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running out from his house when his wife alone was staying there.
38. Exception I to Section 300 IPC is as follows:-
“Exception 1.-When culpable homicide
is not murder.- Culpable homicide is not murder if the
offender, whilst deprived of the power of self-control
by grave and sudden provocation, causes the death of
the person who gave the provocation or causes the
death of any other person by mistake or accident.”
39. Section 304 IPC reads as follows:-
“Punishment for culpable homicide not
amounting to murder.
304. Punishment for culpable homicide
not amounting to murder.--
Whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment for life,
or imprisonment of either description for a term which
may extend to ten years, and shall also be liable to
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fine, if the act by which the death is caused is done
with the intention of causing death. or of causing such
bodily injury as is likely to cause death;
or with imprisonment of either
description for a term which may extend to ten years,
or with fine, or with both, if the act is done with the
knowledge that it is likely to cause death, but without
any intention to cause death, or to cause such bodily
injury as is likely to cause death.”
40. The first question to be addressed by us is whether the
death of the deceased was a homicide or was caused by a fall on the ground?
41. The evidence of P.W.1 assumes importance in this aspect.
P.W.1 is the father of the deceased. He could be termed as an interested
witness but, the evidence he adduced was natural. He had stated that the
deceased would come home every day at around 9.00 p.m. to have his
dinner. On that day, 29.06.2010, the deceased did not come home for
dinner. Therefore, he was searching out for the deceased. P.W.2 is his other
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son. The evidence of P.W.2 is however slightly different. He stated that
he/P.W.2, his father P.W.1 and P.W.3 and P.W.4 both of whom are called
Karuppasamy were talking and they heard a loud noise at around 11.45 p.m.
They rushed towards the direction of the place from where the noise was
heard. They saw the deceased running out only with a lungi and behind him,
the accused chasing him with a wooden stick and hitting him on the head.
P.W.1 stated the same fact. Therefore, even if the deceased had fallen down,
the fall is the result of the hit in the head. Further the nature of the injury
caused as is seen from the postmortem certificate is a deep injury exposing
the bone. We hold that the deceased died a homicide death.
42. It is next to be examined whether this death was caused by
the accused?
43. From the evidence of P.W.1 and P.W.2, it is clear that the
only person who caused the injury on the deceased was the accused. On the
basis of his confession, M.O.1 wooden stick had been recovered, which also
contained blood stain. It is also seen that subsequently, on the basis of his
confession, the blood stained shirt worn by him was also recovered and had
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been produced as M.O.5. The presence of blood marks in the stick and the
shirt more particularly on the shirt worn by the accused calls for an
explanation by the accused. No explanation had been given by the accused.
Even though it is stated that blood stain did not match with the blood group
of the deceased, it must also be stated that a blood stain on a fabric or blood
stain on a wooden stick would merge with the fabric and with the wood and
it would be extremely difficult to take out traces from them to find out the
blood group. However, it is the burden of the accused to explain as to how
his shirt became blood stained. Therefore, we hold that the homicide of the
deceased was caused by the accused and the accused alone.
44. The next aspect to be examined is whether this was caused
with intention to cause death and with knowledge that the blow which he
had given on the head would cause death and that the deceased would
certainly die owing to that particular blow?
45. In the instant case, the extreme provocation would have to
be considered by us. The accused had seen the deceased running out of his
house in the middle of the night at 11.45 p.m. wearing only a lungi, when he
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knocked the door. The only presumption which the accused would have
drawn is that this was not just a casual relationship between his wife/P.W.7
and the deceased but, a carnal physical relationship. This would cause deep
anger and agitation in any person. It would deprive any man of the power of
self control. The provocation was not the result of any act by the accused
but caused only by the deceased.
46. During the cross-examination of P.W.2, he had stated as
follows:-
“vd; jk;gp Kj;Jf;fUg;gDf;Fk; vjphpapd;
kidtpf;Fk; fhjy; cz;L..”
A rough translation is that P.W.2 had admitted that his younger brother (the
deceased) was having a love affair with the wife of the accused.
47. Thus, the fact that the deceased had relationship with a
married lady/wife of the accused had been established by the witness for the
prosecution. As a matter of fact, even in the charge it had been stated that
three months prior to the incident, the accused had seen the deceased
coming out of his house in the night 9.00 p.m. and there was a quarrel
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between the two of them. The provocation which was suffered by the
accused was caused only by the accused. That provocation had caused him
to chase the deceased and hit him on the head with the stick. Even though it
can be argued that his mind was agitated, at that particular point of time the
intention would to chase away the deceased and to cause harm only to the
extent that the deceased does not come to his house again. Since the
deceased was also running, the blow on the head had put him off balance
and he had fallen down. We hold that this extreme and sudden provocation
is a mitigating factor so far as the offence committed by the accused is
concerned.
48. In the judgment cited by the learned Counsel for the
appellant reported in (2009) 16 SCC 361 (referred supra) (Felix Ambrose
D'souza), the case therein was the causing of the death of a younger brother.
There was a litigation before the Civil Court and the family was divided into
two separate groups and they had also put individual locks of a store room
where substantial number of coconuts plucked from the garden were stored.
There was an altercation to break open the lock and at that time, the
altercation escalated into physical manhandling and in that process, with a
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'Kathi/Knife' cuts were inflicted on the neck of the deceased, as a result of
which, the deceased died. The blow in that particular case was on a
vulnerable portion of the body, in the neck with a weapon/Kathi/Knife. The
Hon'ble Supreme Court had taken into consideration the provocation which
had happened and had held that it was a fit case for setting aside the
conviction under Section 302 IPC and modifying the conviction under
Section 304 part II IPC.
49. In the instant case, the accused had wooden stick of 2 ½
feet and was chasing the deceased who was running and in that process, he
had hit him on the head. We hold the accused would certainly not have
knowledge that the blow would cause the death of the deceased. The
deceased also fell down. Though there was further evidence from P.W.1 and
P.W.2 that the accused caused further injuries, this statement from P.W.1
and P.W.2 has not been supported by the other eye witnesses P.W.3 and
P.W.4. The postmortem certificate also points out that there were blows
only on the head portion. There was an injury caused to the depth of the
bone which would indicate that it was caused by a blunt object like a stick
and that there was no incisive cut on the body. All these point out the nature
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of the weapon used and the nature of the blow caused and the nature of the
injuries suffered. We hold that there was no intention to cause death and
there was no knowledge that the blow would cause death. The intention was
to chase away the deceased and to ensure that he does not come back to the
house of the accused. It was certainly not to cause death.
50. The Hon'ble Supreme Court in the judgment of Felix
Ambrose D'souza (cited supra), while dealing with the plea of litigation and
conversion of conviction from offence punishable under Section 302 IPC to
offence punishable under Section 304 part II IPC had held as follows:-
7. The learned counsel for the appellant in the
alternative has made a submission that, at any rate,
the facts even held proved, could not be considered to
be just and sufficient to warrant a conviction under
Section 302 IPC and if at all conviction under Section
304 part II IPC alone could have been rendered
possible. Though the learned counsel for the
respondent - state strongly insisted that keeping in
view the gravity of the offence and the brutal manner
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in which it has been committed with the background of
animosity and ill-will there was no need for altering
the nature of offence and that the finding of the High
Court in this regard may not call for any interference.
As noticed earlier and having regard to the materials
and the evidence on record as spoken to even by the
prosecution witnesses there does not appear to be any
premeditated plan or intention to either put an end to
the life of the deceased or cause any injury with the
intention of causing his death or causing such bodily
injury which within the knowledge of the accused was
likely to cause his death even in the ordinary course of
nature. Irrespective of the silent nature ill-feelings
which existed between the parties, it appears to have
surfaced with a violent turn on the fateful day due to
sudden quarrel which even according to the
prosecution witnesses, commenced with an altercation
and attempts to break open the lock which was said to
have been placed on the door of the store room by the
appellant in addition to the one part by the father and
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the deceased. In the tussle and altercation and an
attempt to break the lock by the deceased with an
hammer in his hand and attempts made by the
appellant to physically prevent the deceased from so
doing, and physical use of force in the process,
passions seem to have flared up beyond proportion all
of a sudden, perhaps neither anticipated nor intended
by either of them. The prosecution version itself lends
credence and support to the plea of sudden
provocation on the spur of moment. Therefore, we are
of the view that the High Court was not right in
arriving at the conclusion to convict the appellant
under Section 302 IPC. In our considered view, on the
proved facts the only offence that could reasonably be
said to have been made out and for which the
appellant could be convicted would be under Section
304 part II IPC and to this extent we partly allow the
appeal and set aside the order of conviction under
Section 302 IPC and instead convict him under Section
304 part II IPC.
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51. The reasoning and ratio laid down therein squarely applies
to the facts of this case. The accused had seen the deceased running away in
the middle of the night wearing a lungi from his own house, where his wife
was staying. There was already an earlier quarrel about illicit relationship
between the deceased and his wife. On the fateful day, there was a repetition
of such intimacy by the deceased entering into his own house when his wife
was staying alone. This is extreme provocation. We hold that the conviction
of the accused for offence punishable under Section 302 IPC has to be
interfered with and has to be set aside and we set aside the same and instead
convict the accused for offence punishable under Section 304 part II IPC.
52. Insofar as the sentence is concerned, even in the judgment
of the Hon'ble Supreme Court in the case of Felix Ambrose D'souza (cited
supra), the Hon'ble Supreme Court had sentenced the appellant therein to
four years rigorous imprisonment.
53. Taking all factors into consideration, particularly, the
statement of the learned counsel for the appellant that P.W.7, wife of the
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accused has deserted the accused permanently as on date and that he is
staying alone and the children have also left with P.W.7 and he is eking out
livelihood as a watchman in a coconut grove, we would sentence him to
punishment of four years Rigorous imprisonment. We would however retain
the fine portion of the judgment, namely, Rs.10,000/- in default, one year
simple imprisonment. We are informed that the fine amount had been paid.
54. We therefore direct the trial Court to take the accused into
custody to serve the remaining period of sentence. We also direct that the
sentence already undergone by him to be set of under Section 428 Cr.P.C.
55. In the result, the Criminal Appeal is partly allowed setting
aside the conviction for offence punishable under Section 302 IPC, but
convicting the accused for offence punishable under Section 304 part-II IPC
and sentencing him to undergo the imprisonment for four years rigorous
imprisonment with set off under Section 428 Cr.P.C. for period of
imprisonment already undergone.
[C.V.K., J] & [J.S.N.P., J]
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02.09.2024
Internet :Yes
Index :Yes
NCC :Yes
PKN
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To
1.The Inspector of Police,
Krishnankovil Police Station,
Virudhunagar District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
3.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court, Madurai.
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C.V.KARTHIKEYAN, J.
AND
J.SATHYA NARAYANA PRASAD. J.
PKN
Judgment made in
02.09.2024
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