AATHI ALIAS AATHIAPPAN Vs. STATE

JUDGEMENT

(1.) THE appellant in the appeal stands convicted by judgment dated 20.3.1998 in S.C. No.34/96 on the file of Court of Sessions, Tirunelveli, for offences under Sections 449, I.P.C. and 302, I.P.C. (2 Counts). For the former offence, he stands sentenced to undergo 2 years RI and for the latter offence, on each count, he was sentenced to undergo 14 years R1. THE sentence imposed on each count of murder was directed to run consecutively. Finding that the sentence of 14 years RI imposed for the offence of murder, on each count, is illegal, we caused notice to be issued to the appellant as to why, if the Court ultimately agrees with the finding rendered by the learned Sessions Judge on that offence, the sentence imposed on him by the Sessions Court should not be enhanced to fit in with the sentence prescribed by law. Notice was served on the accused in prison and he sent a written response stating that the offence complained of could not be under Section 302, IPC but only under Section 304(III) ,IPC (probably, an error for 304 (II), IPC) and therefore, he must be taken out of the rigour of Section 302, IPC. Since, the counsel on record was not before this Court at all times when the appeal was taken up for hearing, we appointed Mr. N. Duraisamy, a learned member of the bar having 38 years of experience on the Criminal side, not only in this Court, but also before the Trial Court, as a legal aid counsel, by order dated 26.2.2003. A set of material papers was handed over to the learned counsel in Court itself and the learned counsel submitted that if the appeal is taken up for hearing today, he would be in a position to argue the appeal. Accordingly, the appeal is heard by hearing the arguments of the learned counsel for the appellant and the learned Additional Public Prosecutor for the State.

(2.) THE case of the prosecution is that annoyed over the illicit intimacy of his wife with one Shanmuganathan, the accused, on 6.10.1994, at 01.00 hrs, trespassed into the house of the said Shanmuganathan and committed his murder and in the course of the same transaction, when Leelavathi, wife of Shanmuganathan attempted to intervene, she was also stabbed to death. THErefore, the offences under Section 449, IPC and Section 302, IPC (2) Counts). For convenience sake, we shall refer to the deceased namely, Shanmuganthan and Leelavathi as D-1 and D-2 respectively in this judgment. To substantiate the charge, the prosecution examined P.Ws 1 to 3 as eye-witnesses to the occurrence, out of whom, P.Ws 2 and 3 turned hostile. P.W.2 is the husband of P.W.1 while P.w.3 is a local village leader. D-1 and D-2 are the parents of P.W.1. Her evidence would show that she, along with her husband, was inside the house on the day of occurrence, at that time, both the deceased were sleeping inside the house in the verandah while P.Ws 1 and 2 were sleeping inside the house on the southern portion. During the occurrence time, she heard the murmuring noise of her father and mother and when she and her husband woke up, they saw the accused attacking D-1 first on his head, neck, shoulder and other parts and the body. On seeing D-1 being attacked, D-2 stepped in and she was also not spared by the accused, who cut her indiscriminately. THE witnesses shouted and on hearing their shout, P.W.3 also came there. THE accused ran away with the weapon of offence in his hand. THEreafter, P.W.1, along with others, went to the Police Station, where she gave an oral complaint before P.W.10, the Sub-Inspector of Police, who reduced the same into writing. It was read over to her and she singed in it attested by P.W.2. THE said complaint is Ex.P1.

(3.) ON a perusal of the records, we find that the charges were framed by the Court of Sessions on 4.2.97. All the charges namely, charge No.1 for the offence under Section 449, IPC, charge No.2 for the offence under Section 302, IPC had been read over to the accused and he pleaded guilty to all the charges. It is not as though the accused went back on his plea of guilt referred to above and we find, in fact, that the had admitted his involvement in the crime when he was questioned under Section 313, Cr.P.C. Question No.2 put to him at the time of his questioning under Section 313 of the Code is based on the oral evidence of P.W.1 as an eye-witness to the occurrence and the accused had admitted her evidence before Court as true. In his answer to question No.4 relating to the oral evidence of P.W.3, the accused had admitted that the house of D-1 is next to his and that after cutting, he ran away. Question No.19 put to the accused is the oral evidence of P.W.6 regarding the arrest of the accused; recording his confession statement and recovery of M.O.s 7 and 8 under Ex-P7 and the accused had affirmed it as true. Therefore, there are enough materials on record to show that the accused had not disputed his involvement in the crime. Anyhow, by way of abundant caution, we also applied our mind to the oral evidence of P.W.1. Her oral evidence is crisp and clear about the involvement of the accused tin perpetrating the crime on her parents resulting in their death. No material worth mentioning is available in her evidence, which would discredit her evidence in chief examination regarding the occurrence proper. The cause of death of both the deceased is shown to be due to homicidal violence and the medical evidence in regard to the same is that of P.W.8, who did postmortem on the body of D-1 and P.W.9, who did postmortem on the body of D-2 coupled with Exs-P10 and P12, the respective postmortem certificates. Therefore, the above referred to materials, leave no room at all to doubt the case of the prosecution holding the accused responsible for causing the death of Shanmuganathan and Leelavathi in this case. It may be true that the history of the case attached to Ex-P9 would show that the accused was annoyed over his wife having an illicit intimacy with D-1. But, we find from the other materials on record that the accused had not taken any stand based on such illicit intimacy of his wife with D-1. Assuming without conceding that there is a point in favour of the accused for causing the death of D-1 due to sustained provocation, yet, there is absolutely no justification for him to commit the murder of D-2. Therefore, looking from any angle, the conviction of the accused/appellant for committing the murder of D-2 cannot be set aside. As already referred to above, except the history of the case attached to Ex-P9, there is no other material to show that D-1 was having an illicit affair with the wife of the accused, which constituted the source for his sustained provocation due to which he had acted in the manner as brought to the notice of the Court. Therefore, we have no hesitation in confirming the conviction of the accused for the offence under Section 302, IPC (2 counts) and for the offence under Section 449, IPC.