(Prayer: Criminal Appeal is filed under Section 372 of the Code of Criminal Procedure, to call for records from the lower court in S.C.No. 780 of 2017 on the file of the learned Sessions Judge Magalir Neethimandram, Tirunelveli, Tirunelveli District in S.C.No.780 of 2017 dated 27.02.2023 and 28.02.2023 by acquitting and by allowing the appeal.)
N. Anand Venkatesh, J.
1. The sole accused has assailed the judgment of the learned Sesions Judge, Mahalir Neethimandram, Tirunelveli, in S.C.No.780 of 2017, dated 27.02.2023, wherein the accused has been convicted and sentenced in the following manner.
| Provision under which convicted | Sentence |
| Sec. 341 of IPC | One month rigorous imprisonment. |
| Sec. 302 of IPC | Life imprisonment and fine of Rs. 10,000/-, in default to undergo 6 months simple imprisonment. |
3. The further case of the prosecution is that the accused developed a motive to the effect that the deceased Pooranavalli, was responsible for the said Anushya ending her life and hence, on 28.05.2017 at about 10.50 hours, when the deceased completed the prayer meeting and was walking on the road, the accused person is said to have waylaid the deceased and attacked her with an aruval (MO1) and caused cut injuries as a result of which the said Pooranavalli died.
4. PW1, who is the son of the deceased and who is an eyewitness to the incident, gave a complaint (Ex.P1) and on receipt of the same, an FIR came to be registered in Crime No.145 of 2017 (Ex.P18). The printed FIR was handed over to the Judicial Magistrate No.3, Tirunelveli, on 28.05.2017 at about 13.00 hours.
5. PW14 took up the investigation and went to the scene of occurrence and prepared the observation mahazar (Ex.P5) and the rough sketch (Ex.P19). He also recovered the material objects under athatchi (Ex.A6) in the presence of witnesses. He proceeded further to the Tirunelveli Government Medical College Hospital and conducted the inquest in the presence of panchayatdars between 15.00 hours and 17.00 hours and prepared the inquest report (Ex.P20). The investigation officer had sent the body of the deceased through PW12 for postmortem and PW8 conducted the postmortem and the postmortem report was marked as Ex.P8 and the following injuries were recorded:
“THE FOLLOWING ANTE-MORTEM INJURIES WERE NOTED:
1.An oblique, gaping, heavy cut injury of size 8 × 3 cm × dura matter deep is seen over the right parietal region. It cuts underlying scalp and skull bone.
2.An oblique, gaping cut injury of size 5 × 1 × 1 cm is seen on the right side of the occipital region, lying 5 cm behind the right ear. It cuts underlying scalp.
3.An oblique, gaping cut injury of size 6 × 2 × 1 cm lies 5 cm below Injury No. 2. It cuts the underlying soft tissues.
4.A scratch abrasion of length 5 cm lies 1 cm below Injury No. 3.
5.A horizontal, heavy cut injury of size 4 × 1 × 1 cm lies 1 cm below and in front of Injury No. 3, on the right side of the neck. It cuts the underlying soft tissues.
6.A horizontal, gaping, heavy cut injury of size 10 × 3 × 3–5 cm is seen on the lower part of the right side of the neck, lying 3 cm below Injury No. 5. The depth is greater at the anterior end. It cuts underlying soft tissues, vessels, nerves, the 3rd cervical vertebra, and the spinal cord.
7.A horizontal, gaping, heavy cut injury of size 7 × 1 × 1–3 cm lies on the upper part of the right side of the back, 3 cm below Injury No. 6. It cuts underlying soft tissues and has a tail of size 4 cm in its medial end.
8.A horizontal, gaping, heavy cut injury of size 8 × 1 × 1–3 cm lies on the back of the right shoulder, 2 cm lateral to Injury No. 7. It has a tail of length 2 cm in its medial end and cuts underlying soft tissues.
9.A horizontal, gaping, heavy cut injury of size 8 × 2 × 4–7 cm lies on the back of the right side of the chest, 5 cm below Injury No. 7. It cuts underlying soft tissues and the back of the right scapula bone. The injury is deeper at its outer edge and has a tail of length 3 cm in its medial end.
10.An oblique, gaping, heavy cut injury of size 7 × 2 × 2 cm lies on the top of the right shoulder. It cuts underlying soft tissues.
11.A contusion of size 3 × 2 cm seen over the top of the left shoulder.
12.An oblique, gaping cut injury of size 6 × 1 × 1 cm lies on the back of the left hand at the base of the fingers. It cuts underlying soft tissues and bones.
ON DISSECTION OF HEAD:
Marked subarachnoid haemorrhage is noted over the right temporo-parietal region.”
6. The accused person was arrested and based on the admissible portion of his confession, MO1 and MO8 were seized under athatchi (Ex.P4).
7. After recording the statements of witnesses under Section 161 of CrPC and after collecting all the materials, the police report came to be filed before the Judicial Magistrate No.3, Tirunelveli and after serving copies to the accused under Section 207 of CrPC, the case was committed to the file of the Sessions Court, Mahalir Neethimandram, Tirunelveli, which was taken on file in S.C. No.78 of 2017.
8. The trial court framed the charges for offences under Sections 341, 294(b) and 302 of IPC and the accused person denied the charges.
9. The prosecution examined PW1 to PW14, marked Exhibits P1 to P21 and relied upon MO1 to MO11.
10. The incriminating circumstances and the evidence was put to the accused under Section 313 of CrPC and he denied the same as false.
11. The accused person did not examine any witness nor relied upon any documents.
12. The trial court, on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to the conclusion that the prosecution proved the case beyond reasonable doubts and accordingly convicted and sentenced the accused person in the manner stated supra. Aggrieved by the same, the present criminal appeal has been filed before this Court.
13. This Court has carefully considered the submissions made on either side and the materials available on record.
14. The crux of the arguments on the side of the appellant is that the prosecution has not examined Usha, who is the daughter of the deceased, in order to prove the motive behind the crime and that PW1 and PW2, who are said to be the eyewitnesses, happen to be the sons of the deceased and their evidence is highly doubtful in the absence of any corroboration by independent witnesses. In the alternative, it was submitted that even if the case of the prosecution is taken as it is, the case in hand has to be brought under Exception 1 to Section 300 IPC, since the murder was committed under sustained provocation.
15. The prosecution examined PW1 to PW4 as eyewitnesses. Even though PW3 and PW4 did not completely support the case of the prosecution, the evidence of PW1 and PW2 assumes a lot of significance.
16. PW1 is the son of the deceased. He has explained the manner in which the incident had taken place. He has stated that on 28.05.2017, when his mother, after attending the prayers, was moving out of the church in the road, the accused attacked her with MO1 on the head and neck and she fell down and the deceased was taken in an ambulance to the hospital, where she was declared brought dead.
17. PW2, who is also the son of the deceased, has tendered evidence in line with the evidence of PW1.
18. The learned counsel for the appellant submitted that PW1 and PW2 are sons of the deceased and it is unnatural that on seeing the accused person with the aruval, they did not raise alarm and did not try to prevent the accused person and if they had really carried the deceased to the hospital, their clothes must have been stained with blood and this was not even recovered by the police.
19. In the considered view of this Court, every witness who witnesses a gory incident reacts differently. There are some who will attempt to prevent the incident, there are others who will freeze and become immobile without taking any action and another category of person who will run away from the scene of crime. Therefore, each person behaves differently after seeing an incident. Hence, while testing the evidence, the Court cannot apply any fixed standards and the case must be seen in the light of the attending circumstances.
20. The evidence of PW1 and PW2 cannot be discredited merely on the ground that the blood-stained clothes were not seized by the police. At the best, it can only result in a defective investigation. What happened after the incident assumes a lot of importance. Immediately after the incident, the sons of the deceased had taken the deceased to the hospital. This has been spoken to by PW13, through whom the Accident Register has been marked as Ex.P17. On carefully going through the evidence of PW13 and the contents of Exhibit P17, it is quite clear that the deceased was taken to the hospital on 28.05.2017 at 11.30 a.m. The name of PW1 has also been mentioned as Durai as the person who brought the body of the deceased and his relationship is mentioned as son. There is no reason to disbelieve the evidence of PW13 and the accident register marked as Ex.P17.
21. It is also relevant to take note of the evidence of PW14, who stated that on 28.05.2017 at about 11.30 a.m., the Sub-Inspector of Police received information from the hospital and had gone to the hospital and received the complaint from PW1. The FIR was registered at 12.30 hours. The FIR has reached the Court on the same day at about 13.00 hours and which has been spoken to by PW10.
22. It is seen that Section 161 statement of PW1, which was recorded on 28.05.2017, reached the Court the very next day and therefore, there is no question of deliberation and cooking up a false case by the prosecution. Section 161 statement recorded by PW2 has also reached the Court on 30.05.2017.
23. Apart from that, the evidence of the postmortem doctor PW8 and the injuries recorded in the postmortem report (Ex.P8) corroborates the evidence of the ocular witnesses of PW1 and PW2.
24. The learned Senior Counsel appearing for the appellant submitted that the motive aspect has not been proved by the prosecution and there cannot be any motive for the appellant to do away with the deceased since the person who sexually exploited was the pastor of the church.
25. In a case where the prosecution is able to establish the incident through eyewitness account, motive takes a back seat. The law on this issue is now too well settled. However, in the instant case, PW1 to PW4 have spoken about the motive to the effect that the accused person strongly felt that the deceased was the one who introduced his sister to the pastor which led to the sexual abuse and the suicide committed by his sister. Just because the daughter of the deceased Usha was not examined, that does not in any way discredit the motive angle that was projected by the prosecution.
26. The Apex Court has repeatedly held that where the eyewitness account is natural and is not discredited, certain discrepancies or blemish committed by the investigation officer during the investigation, cannot be a ground to completely wipe out the evidence of witness. Keeping this in mind, this Court holds that the prosecution has proved the case beyond reasonable doubts in the light of the evidence of PW1 and PW2, which is corroborated by PW13 and Ex.P17 and also the evidence of PW8 and Ex.P8.
27. The next limb of the argument is regarding the invocation of Exception 1 to Section 300 of IPC.
28. In order to invoke Exception 1 to Section 300, it must be established that the accused person was deprived of the powers of selfcontrol by grave and sudden provocation and thereby he has caused the death of a person. However, this exception itself carves out certain exceptions in the nature of proviso and states that such provocation must not be sought or voluntarily provoked by the offender as an excuse for killing and whether such provocation was under grave or sudden provocation is a question of fact which has to be decided in each case.
29. In the case in hand, the sister of the accused died more than six months before the incident. The learned Senior Counsel submitted that even if there is no grave and sudden provocation, sustained provocation can also come within Exception 1 to Section 300 of IPC and to substantiate the same, the learned Senior Counsel relied upon the judgment in Crl.A.1124 of 2022 in the case of Dauvaram Nirmalkar v. State of Chhattisgarh, dated 02.08.202.
30. The idea behind Exception 1 is to exclude acts of violence which are not premeditated and not to deny the consideration of circumstances which resulted in the incident that took place in the past and subsequently resulting in grave and sudden provocation.
31. The accused person was certainly aggrieved by the fact that his sister unfortunately got introduced to the pastor by the deceased and she was sexually abused and it ultimately resulted in her suicide. Probably, the accused person developed a motive as against the deceased and his daughter Usha and thought that if his sister had not been introduced by them to the pastor, she would not have ended her life under unfortunate circumstances. Even though series of incidents had not taken place resulting in the provocation, that one incident where the accused person lost his sister had a lingering effect on the accused person and it sustained itself up to the incident and on the fateful day the accused person decided to do away with the deceased.
32. The most important question that has to be asked is as to whether anything happened before the incident which would have provoked the accused to indulge in a murderous attack on the deceased. The answer is a clear 'No'. There was only one incident that had taken place earlier and which is the suicide committed by the sister of the accused because of the sexual abuse by the pastor which got revealed in the media. On the date of incident, the deceased was not even aware that the accused was present in that place and the accused had come to that place with a clear plan to do away with the deceased. That is the reason why he came to that place with an aruval (MO1). The deceased did not do any act which would have provoked the accused person and in fact, the deceased was attacked by the accused person all of a sudden. In short, there was no trigger just before the incident which would have revived the sustained provocation sought to be attributed in favour of the accused person. Thus, it can only be said that there was voluntary provocation by the accused as an excuse for killing the deceased. This clearly comes within the first exception to Exception 1 of Section 300 of IPC. Hence, this Court is of the considered view that Exception 1 to Section 300 of IPC will not have any application in this case.
33. In light of the above discussion, this Court does not find any ground to interfere with the judgment passed by the learned Sessions Judge, Mahalir Neethimandram, Tirunelveli District in S.C.No.780 of 2017 dated 27.02.2023 and 28.02.2023 and accordingly, this criminal appeal stands dismissed.