RAMU Vs. STATE

JUDGEMENT

(1.) THE appellants two in number, who stood charged, tried and found guilty under Sec. 302 read with 34 of I. P. C. and awarded life imprisonment along with fine by the Sessions Division, Salem , have brought forth this appeal.

(2.) THE short facts necessary for the disposal of this appeal can be stated as follows: (a) P. W. 1 is the brother of the deceased Saravanan. P. W. 1 was residing at Chennakollapatty. THE deceased along with his family members was living at Chettichavadi Manthope. P. W. 10 is the wife of the deceased. A month prior to the date of occurrence, there was a quarrel between A-1 and A-2 on the one side and the deceased on the other, since the deceased was calling the first accused "nollaikannan". At that time, P. W. 1 intervened and pacified them. On 16. 8. 1996, the deceased left at about 8. 00 P. M. , from his house to go on a tour, which was arranged by P. W. 6. At about 9. 00 P. M. , P. W. 3 witnessed a quarrel between the deceased and A-1 and A-2. She interfered and pacified the situation, and thereafter, A-1 and A-2 left the place. At about 10. 00 P. M. , when P. Ws. 4 and 5 were just returning from Vinayagampatty after purchasing grocery, they found A-1 and A-2 and the deceased quarrelling with each other. At that time, A-1 strangulated the deceased, while A-2 fisted him on his face. P. Ws. 4 and 5, after witnessing the occurrence, went away from the place. P. W. 2, who came by the side of the scene of occurrence at about 6. 30 a. M. the next day, found the dead body of the deceased and informed to P. W. 1, who also immediately went to the scene of occurrence and verified the same. At about 10. 00 A. M. on 17. 8. 1996, P. Ws. 4 and 5 informed P. W. 1 about the incident that occurred at about 10. 00 P. M. the previous day. Immediately, P. W. 1 proceeded to Kannankurichi Police Station, where P. W. 13 the Sub Inspector of police, was on duty. He gave a report Ex. P1 to P. W. 13, on the strength of which a case came to be registered in Crime No. 864/96 under Sections 341 and 302 of i. P. C. Printed First Information Report Ex. P10, was despatched to Court. (b) On receipt of a copy of the First Information Report, p. W. 14 the Inspector of Police, took up investigation in the case, proceeded to the spot, made an inspection in the presence of witnesses and prepared Ex. P4 the observation mahazar, and Ex. P11 the rough sketch. THE place of occurrence and the dead body were caused to be photographed through P. W. 11 a Photographer, and the photographs and its negatives were marked as M. Os. 6 and 7 series respectively. THEn, he conducted inquest on the dead body in the presence of panchayatdars and witnesses and prepared Ex. P12 the inquest report. (c) Pursuant to the requisition forwarded by the Investigating officer through a Police Constable, the dead body of Saravanan was subjected to autopsy by P. W. 7 the Police Surgeon and Professor of Forensic Medicine, government M. K. Medical College, Salem, and he found the following injuries. "1. A contusion on left upper eye, 3 cms x 1 cm x 0. 5 cm. 2. A contusion on the left side of lower lib, 1 cm x 0. 5 cms. x 0. 5 cm. 3. A contusion on the left temporal region of scalp, 4 cms. x 1 cm. x 0. 5 cm. 4. A contusion on the left frontal region of scalp, 2 cms. x 1 cm. x 0. 5 cm. 5. A contusion on right temporal region of scalp, 3. 5 cms. x 0. 5 cms. x 0. 5 cm. 6. An irregular abrasion over right cheek, 1 cm x 0. 5 cm. 7. An irregular abrasion over right side of neck, 4 cms. x 2 cm. 8. Cresentic abrasion over right side of neck, on its upper part, 2 cms. x 1 cm. x 0. 5 cm. 9. An irregular abrasion over the middle of right side of neck, 2 cms. x 1 cm. 10. An irregular abrasion over upper part of left side of neck, 3 cms. x 1 cm. 11. Three cresentic abrasions over left side of neck, 0. 5 cms. x 0. 5 cm in each. 12.An irregular abrasion over upper and outer aspect of left arm, 4 cms. x 1 cm.- Dark brown in colour. 13. A contusion on right side of neck, 3 cms. x 1 cm. x 0. 5 cm. and left side of neck, 2 cms. x 1 cm. x 0. 5 cm and 1 cm x 0. 5 cm. x 0. 5 cm. 14 Fracture of hyoid bone present. 1. Fracture of thyroid cartilage present. " THE Doctor issued Ex. P3 the postmortem certificate, with his opinion that the deceased would appear to have died of asphyxia due to throttling. (d) P. W. 14 the Investigating Officer, recovered M. O. 1 shirt, and M. O. 2 banian, from the house of the deceased under a mahazar Ex. P5. THEn, he proceeded to Sambu Odai Bridge at about 5. 00 P. M. that day, where he prepared an observation mahazar Ex. P6. Photographs were taken through the photographer P. W. 11, and the photos and the negatives were marked as M. Os. 8 and 9 respectively. During investigation, the Investigating Officer arrested both the accused at 6. 00 A. M. on 19. 8. 1996. THE second accused gave a confessional statement, which was recorded by the Investigating Officer in the presence of two witnesses. THE admissible part was marked as Ex. P8. Consequent upon the same, the second accused produced M. O. 4 shirt, which was recovered in the presence of the same witnesses under Ex. P9 the mahazar. On completion of investigation, the final report was filed against the accused.

(3.) ADDED further, the learned Counsel that even assuming that the facts of the prosecution case are proved that it was the first accused who throttled him and the second accused fisted him, the said acts would not attract the penal provisions of murder; that there is sufficient evidence to show that the parties were quarrelling with each other, and it was the deceased, who called A-1 as "nollaikannan", and pursuant to the same, a quarrel ensued between the parties; that this type of quarrel had arisen not only in the past, but also at the time of occurrence; that the evidence of p. Ws. 4 and 5 would clearly indicate that they were quarrelling, as a result of which, in the heat of passion, the accused have acted, and thus, it was neither planned nor premeditated, and under the circumstances, the act of the accused would fall within the provisions of Exception 4 to Sec. 300 of I. P. C. , and hence, the same has also to be considered by this Court.