ANVER Vs. STATE

JUDGEMENT

(1.) This appeal arises from the conviction and sentence of the learned Principal Sessions Judge, Madurai, in C.A.No. 135 of 1986 for the offence under Section 304 Part II Indian Penal Code to undergo rigorous imprisonment for five years.

(2.) The prosecution case is as follows : The deceased Mohammed Ali Jinnah and this appellant were brothers living in separate huts in a terraced portion within the compound of Amar Ammal, situated in Attu Mandhai Pottel Street, Madurai. The deceased had three wives viz. P.Ws. 1 and 2 and Kazim Bibi all living with him in the same hut in the upstairs portion. His sister Mariam Bibi also was living in another hut in the upstairs portion with her sons P.Ws. 3 and 4. The deceased was a drunkard and on the fateful night that is on 21-9-1985, at about 8.00 pm, he came to the house, quarreled with his sister Mariam Bibi in the drunken state and gone out. He returned by about 11.00 pm. His sister told this appellant to take the deceased for sending him to bed as he was in the drunken state. When the deceased was climbing over the staircase to reach his hut in the upstairs, the appellant followed him and asked the deceased as to why he was frequently quarrelling with others after consuming liquor and for his such behaviour, it was better for him to leave that area. Immediately, the deceased quarreled with his brother, the appellant, and slapped him. The appellant, who was having the M.O. 1 knife at his waist whipped it out and though P.Ws. 1 and 2 and Kazim Bibi tried to intervene, they were pushed down and this appellant stabbed the deceased on his left side neck. After inflicting a single stab, he made his escape from there. P.Ws. 3 and 4 saw the appellant running with the knife. The deceased fell down on the staircase and collapsed within a few minutes. P.W.11, the Sub-Inspector of Police attached to B-1 Police Station, Maddurai, received phone message at 11.45 pm about the quarrel in the house of the deceased and along with the constables, he came to the scene of occurrence and found Mohammed Ali Jinnah dead. He recorded a statement Ex. P-1, from P.W. 1 and registered the same in B-1 Police Station in Crime No. 1364/85 under Section 302 Indian Penal Code and prepared the F.I.R. Ex. P-17, which was forwarded to the Court and his superior officers. The Inspector of Police P.W.12 received the F.I.R. at about 2.30 am on 22-9-1985 and took up the investigation. He conducted the inquest under Ex. P-19 and also seized the bloodstained cement plastering M.O.2 and the sample plastering M.O.3 under Ex.P-3 in the presence of P.W. 5 and after conducting the inquest, sent the body for post-mortem. Kazim Bibi, who sustained injuries when she intervened in the quarrel, was sent to the hospital, where P.W.7 examined her injuries and issued the wound certificate, Ex.P8. On 22-9-1985 at 12.45 pm, P.W.8 conducted the post-mortem on the body of the deceased and found a single stab injury on the left side neck penetrating to a depth of 8.8 Cms cutting the left external jugular vein, wind pipe and the right external carotid artery and muscles. He opined that the death was due to the stab injury on the neck. The Inspector of Police arrested the appellant in the presence of P. W.s. 4 and 6 at 7.00 pm on 29-5-1985 near Meenakshi College, Madurai, and he gave a confession under Ex.P-4 leading to the recovery of M.O. 1 knife near the blacksmithy of one Sikkander concealed under a stone, under Ex.P-6. The Inspector of Police seized the M.O.4 shirt and M.O. 5 Dhoti of this appellant under Ex.P-5 mahazar in the presence of witnesses. Then the Inspector of Police filed the charge-sheet under Section 302 Indian Penal Code. After trial, the appellant was questioned under Sec. 313, Cr. PC and the appellant denied the complicity in the crime.

(3.) The learned Principal Sessions Judge, having been convinced with the prosecution case, found this appellant guilty under Section 304 Part II Indian Penal Code and convicted him to undergo five years rigorous imprisonment.