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MOOKANDI versus STATE REP. BY THE

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Mookandi v. State rep. by the - Criminal Appeal No.185 of 2003 [2007] RD-TN 1633 (26 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 26/04/2007

CORAM:

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

and

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

Criminal Appeal No.185 of 2003

Mookandi ... Appellant

Accused

Vs

State rep. by the

Inspector of Police,

Pudukottai Police Station,

Tuticorin District.

Crime No.167 of 1998 ... Respondent Complainant This Criminal appeal is preferred under Section 374(1) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Tuticorin dated 06.01.2003 made in Sessions Case NO.440/1998.

For Appellant .. Mr.S.Ravi, Advocate (Amicus Curiae)

For Respondent .. Mr.S.P.Samuel Raj, Additional Public Prosecutor :JUDGMENT



(Judgment of the Court was delivered by P.R.SHIVAKUMAR,J) The sole accused, who stood charged for offences punishable under Sections 302 IPC and 506(ii) IPC, found guilty as per the charges and awarded life imprisonment for the offence under Section 302 IPC and one year rigorous imprisonment for the offence under Section 506(ii) IPC with fine and default sentences by the Judgment of the Principal Sessions Judge, Tuticorin, has brought forth this appeal, challenging the conviction recorded and the sentences imposed on him.

2. The case of the prosecution, in brief, can be stated thus: i) P.W.1 - Poornavalli is the wife of the deceased Sriramar. P.W.3 - Thangapalam and P.W.4 - Subramanian as well as the accused Mohandas are the neighbours of P.W.1. All of them are residents of Kootampuli village within the jurisdiction of Pudukottai Police Station, Tuticorin District. P.W.2 - Murugesan is the brother of P.W.1 and he resides in a different village called Kulayankarisal. On 20.06.1998 at about 09.30 p.m. P.W.1 went to take water from the public water tap provided in Thevarkottam Street in Kottampuli village. At the same time, Pongalpoo Ammal, the wife of the accused also went there for collecting water. There arose a quarrel between them in which the wife of the accused abused P.W.1 in filthy language. On seeing the same, the deceased Sriramar came out of his house, abused the wife of the deceased calling her daughter of a whore and so saying, he caught hold of her hair and pulled it. Immediately thereafter, the accused came to that place, questioned the propriety of the act on the part of the deceased and pick up quarrel with him. P.W.3- Thangapalam and P.W.4-Subramanian who happened to be there, witnessed the said occurrence and pacified the accused and the deceased. Thus the problem was solved for the time being.

(ii) On the date of occurrence, namely 26.01.1998, the deceased, as usual, went to his lease-hold land in which he had planted plantain trees. His wife P.W.1 had also accompanied him to the said field. While they were irrigating the land using motor pump sets, P.W.2- Murugesan and one Panneerselvam, the sister's husband of P.W.1 came there at about 11.00 A.M. to make enquiries with P.W.1 regarding the quarrel that took place the previous night. While they were thus making enquiries with P.W.1, at about 12.00 Noon, the accused came there with an aruval in his hand and proclaimed that he would not leave the deceased without cutting him as he had brought disrepute to the wife of the accused by beating her on the previous night. So saying, he started cutting the deceased with the aruval. The deceased who was standing in the channel at that time, at the first instance tried to ward off the cuts by blocking them with his left hand. Thereafter, realizing the danger the deceased started running away from the place in an attempt to escape from the accused. But the accused who was not inclined to leave the deceased, chased him and cut him indiscriminately on the head, neck, shoulder, wrist and other parts of the body and thereby caused his death instantaneously. The accused also threatened P.W.1 and P.W.2 and the other eye witness Panneerselvam that they would meet with the very same fate if they ventured to go near him and left the place of occurrence taking the aruval (weapon of offence) along with him. Thereafter, P.W.1 was crying in the scene of occurrence embracing the dead body of her husband and in that process, her saree became blood stained. Then P.W.1 and P.W.2 went to the police station to lodge complaint. P.W.5, the Sub-Inspector of Police who was present in the station, recorded the statement of P.W.1 and obtained her signature. The signature of P.W.2 was also obtained as an attestor in the said complaint statement. The same has been marked as Ex.P.1, on the side of the prosecution. On the strength of Ex.P.1, P.W.5 prepared the printed FIR - Ex.P.12, registered a case in Crime No.167 of 1998 for alleged offences punishable under Sections 302 IPC and 506(ii) IPC and dispatched the complaint and the printed F.I.R. to the Court. (iii) P.W.11 - Thiru Sankararaj, who was in charge of the post of Inspector of Police, Pudukottai Police Station (Tuticorin District), took up the investigation of the case, went to the place of occurrence and prepared Ex.P.2 - Observation Mahazar and Ex.P.13- rough sketch in the presence of witnesses. Also, he conducted an inquest in the presence of witnesses and panchayatdars and prepared the inquest report-Ex.P.14. Thereafter, the dead body was sent to the hospital along with the requisition for conducting post mortem examination. On the strength of Ex.P.4-requisition, P.W.6-the Assistant Surgeon attached to the Government Hospital, Tuticorin conducted autopsy and issued Ex.P.5-post mortem certificate opining that the deceased would appear to have died of multiple injuries and the damage caused to the brain, about 20 to 25 hours prior to autopsy. During the course of investigation, the bloodstained earth, sample earth, a pair of chappels and the bloodstained saree of P.W.1 were recovered under cover of a mahazar - Ex.P.3. On 25.06.1998, the accused surrendered before the Judicial Magistrate, Srivaikundam and was remanded to judicial custody. After coming to know that the accused had surrendered before the said Judicial Magistrate, the Investigating Officer moved a petition for taking the accused in police custody for interrogation. The said petition was dismissed, as the accused raised objection for the same. All the material objects recovered in this case were sent to the Forensic Laboratory through the Court and the chemical report - Ex.P.8 and serologist report - Ex.P.9 were obtained. P.W.11 continued the investigation, collected necessary materials, recorded the statements of the witnesses, completed the investigation and submitted a final report alleging commission of offences punishable under Sections 302 and 506(ii) IPC, by the appellant/accused. The same was taken on file by the committal Magistrate in P.R.C.No.119/1998. Then the case was committed to the Court of Sessions and necessary charges were farmed in the trial Court.

3. In order to substantiate the charges, the prosecution examined as many as 11 witnesses and marked 14 documents and M.Os.1 to 7.

4. On completion of evidence on the side of the prosecution, the accused was questioned under Section 313 of Cr.P.C. pointing out the incriminating portions of the evidence adduced on the side of the prosecution. He denied them as false. No witness was examined and no document was marked on the side of the accused.

5. The learned Principal Sessions Judge, thereafter heard the arguments advanced on either side, took the view that the prosecution had proved the case against the accused beyond reasonable doubt, found him guilty as per the charges and awarded punishments as stated above.

6. As against the conviction recorded and the sentences passed in respect of both the offences, the accused has preferred this appeal citing various grounds found in the memorandum of appeal.

7. Advancing arguments on behalf of the appellant Mr.S.Ravi, Amicus Curiae, made the following submissions:

"The trial Court committed an error in holding the appellant/accused guilty of the offences with which he stood charged. There was a delay in the First Information Report reaching the Court which situates at a distance of 15 k.ms. from the police station. The explanation offered by P.W.8, the Head Constable should have been rejected by the trial Court. P.W.2 is alleged to have accompanied P.W.1 to the police station and attested the complaint (Ex.P.1) lodged by P.W.1. But there are material contradictions between testimony of P.W.1 and that of P.W.2 in this regard. While narrating the incident constituting the motive part of the prosecution case, in her evidence in chief examination, P.W.1 deliberately omitted a fact mentioned in Ex.P.1 complaint that the deceased kicked the wife of the accused. The trial Court failed to properly appreciate the same. Both the alleged eye witnesses are closely related to each other and also related to the deceased. Before accepting their evidence, the test of careful scrutiny should have been applied. Had such a test been applied, their evidence would have been rejected by the trial Court as unreliable. A tiffin box, a bicycle and a small knife used for cutting dry plantain leaves that were available in the scene of occurrence according to the evidence of P.W.1, were not received by the Investigating Officer. The same will make the presence of P.W.1 in the scene of occurrence, at the time of occurrence improbable. Further more, the presence of P.W.2 and Panneerselvam in the scene of occurrence is doubtful in so far as their names are not found in the inquest report as the persons who had last seen the deceased alive. Had the trial Court properly appreciated the evidence, it would have come to the conclusion that the alleged presence of P.W.2 and Panneerselvam was only a subsequent introduction after deliberation to strengthen the case of the prosecution. Thus the evidence of P.W.2, as if he had seen the occurrence, accompanied P.W.1 to the police station and attested the complaint, should have been rejected as unreliable. All the above said discrepancies and contradictions found in the evidence adduced on the side of the prosecution are capable of giving rise to a reasonable doubt regarding the prosecution case that it was the appellant/accused who caused the death of the deceased. The appellant/accused is entitled to the benefit of doubt and acquittal, if not honourable acquittal."

8. Adding further, as an alternative argument, the learned counsel for the appellant would submit that, even assuming the prosecution version regarding the occurrence to be true, the act of the appellant/accused could not be held attracting the penal provision of murder under Section 302 IPC; that there was provocation for the accused to cause the death of the deceased since the deceased, on the previous day, had attacked the wife of the appellant/accused and that thus the case would squarely attract the theory of sustained provocation to bring it within the exceptions provided under Section 300 IPC in which case the conviction under Section 302 IPC is liable to be modified into one for an offence under Section 304(i) IPC.

9. The Court heard the learned Additional Public Prosecutor on the above said submissions and paid its anxious considerations to the same.

10. The cause of death of the deceased Sriramar was not disputed by the appellant/accused before the trial Court. After the death was reported to the police and the case was registered, P.W.11-Inspector of Police took up the investigation, visited the place of occurrence, conducted inquest on the dead body of the deceased and prepared Ex.P.14 inquest report in the presence of witnesses and panchayatdars. The body was also sent to the hospital with Ex.P.4 requisition for autopsy. P.W.6, the then Assistant Civil Surgeon attached to Government Hospital, Tuticorin, conducted autopsy, noted the injuries found on the dead body and issued Ex.P.5-post mortem certificate opining that the deceased would appear to have died of multiple injuries. As many as 13 cut injuries were noted by P.W.6, the details of which are as follows: External Injury:

1) A cut injury on anterior in middle of neck extending along the left side to the centre of back of the neck and lower part of the mandible to the shoulder joint 20 x 9 x 5 cm fracture of VI cervical Vertibrum. 2) A curved cut injury extending from just above the left ear above to the middle of the head 15 cm. Scalp peeled off. Depth-brain exposed fracture of left parietal bone piece of skull 5 x 3 cm.

3) A curved cut injury extending in Right side of face along about the Right ear to the back of the ear 13 x 2 x 1 cm.

4) A cut injury below Right ear 14 cm in length horizontally Width 1 x 1 cm.

5) A cut injury over the left shoulder, extending from the upper part of left arm to the left side of neck 14 x 6 x 1 cm. 6) A cut injury on lateral part of left arm 14 x 2 x 4 cm. No fracture in humerus.

7) A cut injury in the base of left thumb - Thumb absent. 8) A cut injury extending across the palm 12 x 1 x 2 cm. 9) A cut injury in the middle of left little finger fracture Distal of phalnx.

10) A cut injury in the distal part of the left fore arm 13 x 1 x 2 cm. 11) A cut injury in the lateral part of Right arm 6 x 2 x 2 cm. 12) A cut injury near the Right knee 2 x 1 x 1 cm 13) A cut injury just above the left ear 3 x 1 x 1 cm internal injuries Brain left parietal Temporal lobe injured.

11. It is the cogent and clear testimony of P.W.6 that there was an injury causing damage to the brain on the left Parieto-temporal region; that the deceased appeared to have died of multiple cut-injuries and the injury caused to the brain and that the death would have occurred between 20 to 25 hours prior to autopsy. The brain injury corresponds to the 13th external injury noted in Ex.P.5 - post mortem certificate. It is the further opinion of P.W.6 that injury No.1 noted in Ex.P.5, viz., a cut injury on the anterior middle of the neck extending along the left side to the centre of the neck and lower part of the mandible to the shoulder joint measuring 20 cm x 9 cm x 5 cm and involving fracture of sixth cervical Vertibrum, alone was sufficient, in the ordinary course of nature, to cause death. The opinion of P.W.6 was not challenged by the appellant/accused by cross-examination. In fact P.W.6 was not at all cross- examined on behalf of the appellant/accused. Hence the testimony of P.W.6 and the reliability of Ex.P.5 remain unchallenged. That apart, the appellant/accused has not questioned the fact that the death of the deceased was the result of homicidal violence. Thus, there cannot be any impediment to factually record that the death of the deceased Sriramar was homicidal and the finding of the trial Court in this regard has got to be confirmed.

12. The contention of the learned counsel for the appellant that there are material omissions in the evidence of P.W.1 regarding the motive part of the prosecution case and that the same coupled with the failure on the part of the other witnesses examined in this regard would falsify the alleged motive, has got to be discountenanced for the following reasons. Simply because two witnesses (P.W.3 and P.W.4) out of the three witnesses examined as the persons who saw the previous night's incident constituting the motive, have turned hostile and failed to support the prosecution case, the clear and cogent evidence of P.W.1 in this regard cannot be discredited. P.W.1 is evidence, in this regard, stands corroborated by the contents of Ex.P.1 and the evidence of P.W.2. The omissions pointed out, by the learned counsel, in the evidence of P.W.1, cannot be relied on as contradictions for the simple reason that no contradiction has been elicited with reference to the incident that occurred on the previous night.

13. Further more, the failure to prove the motive alleged by the prosecution can at the best be one of the factors influencing the decision regarding the occurrence. The same will not be enough to disprove the prosecution version regarding the occurrence. Likewise, the mere fact that the motive alleged by the prosecution has been proved will not be enough to hold that the story of the prosecution regarding the occurrence has been proved. That apart, when the prosecution relies on direct evidence namely, the evidence of eye witnesses to prove the occurrence, the proof or otherwise of the motive alleged loses its importance significantly. In the light of the above said observations, let us now consider the submissions made by the learned counsel for the appellant/accused that the prosecution has miserably failed to prove that it was the appellant/accused who caused the death of the deceased. The first and foremost contention raised on behalf of the appellant/accused in this regard is that all the three witnesses cited on behalf of the prosecution as eye witnesses for the occurrence happened to be closely related to each other and also related to the deceased; that out of three witnesses cited in the list of witnesses annexed to the charge sheet as eye-witnesses only two were examined; that before accepting and acting upon their evidence, the test of careful scrutiny should have been applied; that their evidence could not stand such a test of careful scrutiny and that hence the prosecution story that it was the appellant/accused who caused the death of the accused, should have been rejected. The inter se relationship of P.W.1 and P.W.2 and the fact that they were also related to the deceased, will not be the sole ground for rejection of their evidence as unbelievable. This Court after applying the test of careful scrutiny comes to the mere fact that the witnesses happened to be related each other inter se and also related to the deceased is not a ground for rejection of their evidence as unbelievable.

14. On the other hand, if the evidence of such witnesses can withstand the test of careful scrutiny, there is nothing wrong in accepting their evidence and even recording a conviction based on such evidence. This Court applying the test of careful scrutiny, comes to the conclusion that there is no reason, whatsoever, to disbelieve the evidence of P.W.1 and P.W.2. The contradictions pointed out by the learned counsel for the appellant are really minor in nature. The learned counsel relied on the failure on the part of the investigating officer to recover certain articles belonging to the deceased, which were available either on the scene of occurrence or near the scene of occurrence. They are a bicycle used by the deceased to go to the place of occurrence, a tiffin box and a small knife used for cutting plantain leaves. The bicycle used by the deceased to go to the place of occurrence might have been present somewhere near the scene of occurrence at the considerable distance so that the same might not have attracted the attention of the Investigating Officer. Since the bicycle was no way connected with the commission of the crime, the Investigating Officer might have considered it unnecessary to seize the same. The very same observations will apply mutatis mutandis in respect of the tiffin box also. So far as the small knife used for cutting the plantain leaves is considered, the contention of the learned counsel for the appellant/accused deserves to be rejected as no such knife was found on the waist of the deceased as per Ex.P.14-Inquest Report and Ex.P.5-post mortem certificate. It is true that an answer was elicited from P.W.1 in cross-examination that plantain growers used to have a small knife in their possession to cut and remove the dry leaves and that her husband was having such a small knife in his waist. The said snap answer given during cross-examination itself may not be enough to discredit her evidence that she saw the occurrence. Being an illiterate woman while facing the ordeal of cross-examination she seems to have given such an answer on the assumption that her husband would have taken the small knife for cutting the dry plantain leaves along with him as usual. The fact remains that the same was not available with the deceased. Therefore, the said answer given by P.W.1 under the above said misconception, can be brushed aside and the rest of the evidence of P.W.1 which stands corroborated by the evidence of P.W.2 and Ex.P.1-complaint statement has got to be believed. The further fact that her saree got stained with blood when she embraced the dead body of her husband and cried gets corroboration from the evidence of P.w.1, Ex.P.2-Observation Mahazar, Ex.P.8- Chemical Report and Ex.P.9-Serologist Report. It is her clear and cogent evidence that she was asked by the Investigating Officer to hand over her blood stained saree and that she handed over the same after changing it with the other saree which she had caused to be brought from her residence. Therefore, this Court finds no substance in the contention of the learned counsel for the appellant/accused that P.W.1 could not have seen the occurrence and that she was introduced as an eyewitness after due deliberation.

15. The next contention raised by the learned counsel for the appellant/accused is that neither P.W.2 nor Panneerselvam could have been the eyewitnesses for the simple reason that their names were not noted in the inquest report as the persons who had last seen the deceased alive. It is usual practice to note the name of only one person as the person who has lastly seen the deceased while he was alive. In the instant case, P.W.1, the wife of the deceased who was very much present in the scene of occurrence, has been shown as the person who had lastly seen the deceased alive. Therefore, the very fact that P.W.1 alone has been shown as the person to have lastly seen her husband alive will not be enough to accept the contention of the learned counsel for the appellant/accused that neither P.W.2 nor Panneerselvam could have gone to the place of occurrence to see the occurrence.

16. Of course, there is a delay of 4 hours in lodging the complaint and setting the law in motion. The mere delay would not be enough to disbelieve and reject the prosecution case as concocted. Only unexplained delay capable of making possible a hypothesis which is inconsistent with the guilt of the accused will be material. In this case the distance between the place of occurrence and the police station is 7 kms as found in the entries found in Ex.P.12- First Information Report. Thirty minutes will be enough to cover the said distance, if a person travels in a bicycle. Delay of the balance 3 . hours has been clearly explained by P.W.1 and P.W.2. According to P.W.1 and P.W.2, after the occurrence, Panneerselvam and P.W.2 went to the village to bring a person to guard the place of occurrence in the absence of P.W.1 and P.W.2, then they went to the police station to lodge a complaint and thus the delay had been caused. The learned counsel for the appellant/accused pointed out a small discrepancy found in the evidence of P.W.2, in this regard, and advanced an argument that the explanation offered for the delay could be the result of due deliberation. It is true that P.W.2, in his evidence, at one stage would state that two persons from the village were brought to the scene of occurrence to guard it and in another place, he would state that only one person was brought by them to the place of occurrence. The evidence of P.W.1, in this regard, is quite clear and cogent. It is her evidence that P.W.2, along with Panneerselvam, went to the village and brought one Maniraj along with them to guard the place of occurrence while P.W.1 and P.W.2 would be away from the said place to lodge the complaint. The two persons, namely P.W.1 and Panneerselvam, after the occurrence, went to the village and returned with the third person Maniraj. Leaving Panneerselvam and Maniraj at the place of occurrence to guard it, P.W.1 and P.W.2 went to the police station. The statement of P.W.1 was recorded by the Sub Inspector of Police in which P.W.1 signed her name as the complainant and P.W.2 signed his name as the attestor of the complaint. Therefore, the evidence of P.W.2 that she brought two persons to the place of occurrence to guard the same, will nevertheless mean Panneerselvam and the above said Maniraj. If these factors are taken into consideration and the evidence of P.W.1 and P.W.2 are considered in a proper perspective, one may come to the conclusion that the discrepancy pointed out by the learned counsel for the appellant/accused is not at all discrepancy, much less a material discrepancy affecting the veracity of P.W.1 and P.W.2. Therefore, this Court is of the considered view that the evidence of P.W.1 and P.W.2 do not suffer from any infirmity or discrepancy causing in roads into the veracity of their evidence. Thus the arguments advanced on behalf of the appellant/accused for the rejection of the evidence of P.W.1 and P.W.2 deserves to be discountenanced, as there is no substance in it.

17. The next contention raised by the learned counsel for the appellant/accused is that there was an inordinate delay in the first information report reaching the Court which is situated within a distant of 15 kms from the police station. It is the further contention of the learned counsel for the appellant/accused that the explanation offered by the head constable, namely P.W.8, should have been rejected. This Court is unable to accept the above said contention. The case was registered at 4.00 p.m. After the formalities, as per the evidence of P.W.6, the complaint and the first information report was handed over to him at 06.00 P.M., for delivering the same to the Judicial Magistrate. The said document has reached the Judicial Magistrate at 10.00 p.m. For the said delay of four hours, P.W.8 head constable has come forward with a valid explanation that there was a road traffic disruption for about 2 . hours in between Pudukottai and Thoothukudi as some miscreants had pelted stones on a bus near Vallanadu. This Court finds no reason, whatsoever, to disbelieve the said evidence of P.W.8. In these circumstances, this Court, after making an independent evaluation of the evidence adduced in this case, comes to the conclusion that the prosecution has proved beyond reasonable doubt that it was the accused who caused the death of the deceased by indiscriminately cutting with an aruval. This Court is of considered view that the accused alone caused the death of the deceased and none else could have it. There is no infirmity or discrepancy in the finding of the trial Court in this regard warranting interference in this appeal and hence the same has got to be confirmed.

18. This Court also considered the alternative argument advanced on behalf of the appellant/accused. According to the said argument even if it is assumed that the prosecution has proved the alleged act of accused causing the death of the deceased, the same would not amount to an offence of murder, since according to the appellant/accused the act complained of was the result of sustained provocation and hence the same would come under the exceptions provided under Section 300 IPC. Culpable homicide is not murder, if the act of accused comes with in any one of the ten exceptions provided under Section 300 IPC. At the first instance, it was not made clear as to whether 'sustained provocation' is an explanation to the term sudden and grave provocation in a special circumstance or an independent additional exception apart form the ten exceptions provided under Section 300 IPC. Subsequently, it was submitted by the learned counsel for the appellant that the theory of sustained provocation could be applied as a supplement and an exception to the first exception namely sudden and grave provocation if not an independent exception to section 300 IPC. The learned counsel for the appellant relied on the judgment of a Division Bench of this Court in Suyambukkani v. State reported in 1989 Law Weekly (Crl.) 86, in support of his contention that sustained provocation is an addition to the ingredient of grave and sudden provocation. The observation made by the Division Bench of this Court in the above said judgment has been considered by another Division Bench of this Court in Ayyanar and another vs. State of Tamil Nadu represented by the Inspector of Police, Mecherry Police Station reported in 2005(4) CTC 174. In the second judgment cited above the Division Bench after making an observation that there had been an unsuccessful attempt to add "sustained provocation" as one more exception to section 300 IPC, has held that the theory of sustained provocation can be used to bring an act of the accused with in the ambit of the first exception - namely sudden and grave provocation - even though the act giving rise to provocation might be a trivial one insufficient to make the provocation grave and sudden when consider in isolation and that when the same was considered in its background the same would nevertheless amount to sudden and grave provocation. The dictum enunciated therein can be explained in a nutshell as follows: What is contemplated in exception 1 to sec. 300 is sudden and grave provocation capable of depriving the self-control of the accused pursuant to which he causes the death of the person whom gave the provocation or the death of any other person by mistake or accident. What is material is that the provocation must be grave and sudden that the accused looses his self-control on the spur of the moment. Normally the nature of the act or conduct of the victim causing provocation will be taken into account to decide whether the same is enough to cause deprivation of the self-control of the accused to cause the death of the person giving the provocation. But there is one exception to the general rule that the provocation must be not only sudden but also grave. There may be circumstances in which the accused might have been nurturing ill-will for quite a long period because of the conduct of the deceased due to a series of act on the last of such acts might have provoked the accused to attack the deceased and caused his death. Even though the said last act might be a trifling one, if the attack on the deceased was made on the spur of the moment without there being any preplan or premeditation to use such an act as an excuse for causing the death, then the last of such acts giving rise to immediate provocation can be held to have caused grave provocation when the same is considered in the light of the series of incidents which took place earlier, due to which the accused was nurturing ill-will against the deceased. In this context ingredient of sustained provocation is explained as a series of acts more or less grave spread over a certain period of time, the last of such acts acting as the last straw breaking the camel's back. The last incident giving rise to immediate provocation may even a trivial one. But the same would be held enough to cause a grave provocation when considered in the light of the previous acts. The theory of sustained provocation can be applied to bring the act of the accused within the scope of the first exception to section 300 IPC, provided there had been a series of incidents in the past making the accused nurture ill-will against the deceased and the act constituting the offence is committed immediately after the last of such acts of the deceased without there being time gap for reflection and cooling down. The test of proximity between the act giving immediate provocation and the act of the accused constituting the offence shall be applied to find out whether the theory of sustained provocation could be applied to bring the act of the accused within the first exception to section 300 IPC - sudden and grave provocation. Such an act on behalf of the deceased should not have been taken advantage of by the accused and used as an excuse for causing the death of the deceased in execution of his pre-meditated plan. Any premeditation to kill the deceased will definitely rule out the application of the theory of sustained provocation to bring the act of the accused within the ambit of the first exception to section 300 IPC - sudden and grave provocation. On the other hand, simply because there was an earlier incident which might have provoked the accused, the act of the accused causing the death of the deceased after a lapse of considerable time which might be enough for him to cool down and regain the self-control, the theory of sustained provocation cannot be applied. Otherwise no case in which the prosecution relies on a previous incident as the motive for the commission of the offence can end in conviction for an offence of murder. The same cannot be the intention of the legislators. Motive should be distinguished from an incident giving grave and sudden provocation for the commission of the act on the part of the accused.

19. Now, keeping the above said principle in mind, let us consider the alternative submission made on behalf of the appellant. This Court after applying the above mention test for the application of the theory of sustained provocation to the facts of the instant case, is not in a position to accept the above said contention of the appellant that act would at best fall under the penal provision of section 304(i) IPC and not under Section 302 IPC. The alternative argument advanced on behalf of the appellant/accused does not merit acceptance of this Court and the same has got to be discountenanced. In the instant case there was no doubt an earlier incident that took place at 9.00 PM on 25.01.1998 in which the accused not only abused the wife of accused with un- parliamentary words but also pulled her hair and kicked her. There cannot be any second opinion that such an act is capable of giving rise to grave and sudden provocation. But the accused did not act immediately on such prosecution as others pacified him on solved the problem between the deceased and accused for the time being. Thereafter there was a time gap of 15 hours for reflection and getting cooled down. After 15 hours, the accused seems to have gone to the place of occurrence armed with an aruval with a preplan to cause the death of the deceased. In fact there was no act, not even a trivial one, on the part of the deceased committed in the place of occurrence to say that the same acted as the last straw breaking the camel's back. Therefore the act of the accused causing the death of the deceased cannot be termed as a result of the extended exception of grave and sudden provocation applying the theory of sustained provocation. The act of the accused cannot but be termed as an intentional and pre-meditated act squarely falls under the penal provision of murder punishable under section 302 IPC. The appellant has failed in his attempt to make out a case for modification of the conviction into one for an offence punishable under section 304(i) IPC. The trial Court has properly appreciated the evidence, correctly applied the principle of law in this regard to the facts of the case and correctly held the accused guilty of the offence of murder. This Court finds no reason whatsoever, either to dislodge the conviction recorded by the trial Court or to modify the same. The sentence awarded by the trial Court also does not warrant any interference in this appeal. The jdugment of conviction of the trial Court and the sentence awarded are liable to be confirmed. The appeal must fail and the same deserves to be dismissed. Accordingly the conviction and sentence awarded by the trial Court shall stand confirmed and the appeal shall stand dismissed. Before parting with the case this Court records its appreciation for the services render by the learned Amicus Curiae and directs the payment of remuneration out of the funds of the Legal Services Authority attached to the Madurai Bench of Madras High Court as per the schedule of fees applicable to legal aid matters.

To:

1.The Principal Sessions Judge,

Thoothukudi.

2.The Inspector of Police,

Pudukottai Police Station,

Thoothukudi District.

(Crime No.167 of 1998) 3.The Additional Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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