ALAGAR ALIAS ALAGARSAMY Vs. STATE

JUDGEMENT

(1.) CHALLENGING the judgment of the learned Principal Sessions Judge, Virudhunagar District at Sriviliputhur made in S.C.No.56 of 2003, the sole accused, who stood charged under Sections 302 IPC and Section 7 r/w S.25(1-AA) of the Arms Act, tried and found guilty under Section 302 IPC and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo one year RI, has brought forth this criminal appeal.

(2.) THE short facts necessary for the disposal of this appeal can be stated thus: a) P.W.1 is the mother of the deceased Pandy. P.W.2 is the brother's wife of the deceased. P.Ws.1 and 2 were residing at Anbu Nagar, Aruppukkottai for a period of nearly 10 years. P.Ws.1 and 2, when they were residing at Anbu Nagar, were using the vacant site, which is situated nearby their house, for tethering their cattle. THE accused family also were living nearby and they also used the vacant site for the same purpose. THEre were often quarrel between both the families, as the bulls of the accused, since they were not tied properly, used to come and take the oil cake and water of the cattle of the deceased family and hence, there arose a quarrel and both the families were not in talking terms. b) While the matter stood thus, on the day of occurrence, namely 12.04.2002, in the morning hours, the bull of the accused came over and dashed against the cow of P.Ws. On seeing this, the deceased Pandi questioned the same to the wife of the accused and also abused her. This occurrence took place during the absence of the accused, since he went to work. c) At about 9.00 p.m., when the accused returned home, the incident was informed by his wife Veluthai. On hearing this, the accused proceeded to the house of the deceased. In front of the house, P.Ws.1 and 2 and the deceased were sitting and chatting. At that time, the accused came there with Pattaknife, M.O.1 and questioned the deceased as to how you could abuse my wife in my absence. So saying, he attacked the deceased on his left hand and right leg and caused severe injuries. He fled away from the place of occurrence. P.Ws.1 and 2 have witnessed the occurrence. d) THE deceased was taken in an Auto to the Aruppukkottai Government Hospital by P.Ws.1 and 2. P.W.5, the Doctor attached to the Aruppukkottai Government Hospital, admitted the deceased at about 9.55 p.m. THE deceased made a statement to P.W.5 that a known person has attacked him with knife at about 9.15 p.m. His statement was also recorded. THE accident register copy was marked as Ex.P.6. P.W.9, the Inspector of Police of the respondent police station, on receiving the intimation from the Government Hospital, Aruppukkottai, went to the Hospital and recorded the statement of the deceased, which was marked as Ex.P.15, on the strength of which, a case came to be registered in Crime No.250 of 2002 under Sections 307 and 324 IPC. Ex.P.16, the express FIR was despatched to the Court. e) Following the same, P.Ws.1 and 2, on the advise given by the Doctor, took the deceased Pandi to the Rajaji Government Hospital, Madurai and admitted him. P.W.8, the Doctor attached to the Madurai Rajaji Hospital has admitted him as inpatient and gave treatment. Despite treatment, the deceased died at about 1.00 a.m. An intimation was forwarded to the respondent police. Following the same, the case was altered to Section 302 IPC. THE express report was marked as Ex.P.18, which was also despatched to the Court. f) P.W.9, the Inspector of Police, took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.1, the observation mahazar and Ex.P.17, the rough sketch. Following the same, he also recovered bloodstained earth M.O.2 and sample earth M.O.3 from the place of occurrence under a cover of mahazar. THEn, he proceeded to the Madurai Government Rajaji Hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayardars and prepared Ex.P.19, the inquest report. THE dead body of the deceased was sent for the purpose of autopsy along with a requisition. g) P.W.6, the Doctor attached to Madurai Medical College, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has found the injuries. He has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to injuries sustained. h) Pending investigation, the Investigator came to know that the accused surrendered before the Judicial Magistrate, Vilathikulam. A petition was filed for police custody and the same was ordered on 19.04.2002. THE police took him to custody. THE accused made a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.3. Pursuant to the same, the accused produced M.O.1, pattaknife, which was recovered in the presence of the witnesses under a cover of mahazar. THE accused was again sent for judicial remand. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and the M.O. recovered from the accused pursuant to the confessional statement were subjected to chemical analysis by the Forensic Science Department. Ex.P.11, the Chemical Analyst's report and Ex.P.12, the Serologist's report were received by the Court. On completion of the investigation, final report was filed by the Investigating Officer.

(3.) ADDED further the learned counsel that even assuming that the prosecution has proved the case that it was the accused, who attacked the deceased with M.O.1, pattaknife and caused his death, the act of the accused would not attract the penal provisions of murder for the reason that the accused has acted due to provocation. Even as per the prosecution case, when the accused was absent, the deceased shouted at and abused the wife of the accused and it was duly informed by the wife of the accused at about 9.00 p.m., when he returned home. The accused went to the house of the deceased and questioned him. Even as per the evidence of the witnesses, it could be seen that there was a quarrel preceded between the accused and the deceased and at the spur of moment and due to provocation, the accused has acted so and that, the attack was made only on non vital parts, which would indicate the fact that the intention of the accused was not to cause death. Under these circumstances, the act of the accused would not attract the penal provisions of murder, but it would be one culpable homicide, not amounting to murder. Hence, the same has got to be considered by this Court.