Johnson John, J.

1. The appellant is the sole accused in S.C. No. 248 of 2017 on the file of the Additional Sessions Judge-II, North Paravur and he is challenging the conviction and sentence imposed on him for the offences punishable under Sections 449, 324 and 302 of IPC as per the impugned judgment dated 25.09.2018.

2. The prosecution case is that the deceased Eliamma is the mother of the wife of the accused and the building where the accused resided along with his wife Lissy and children belongs to Lissy and the deceased Eliamma and for the reason that the deceased refused to transfer the property to the name of the accused, he harassed his wife Lissy and his mother-in-law Eliamma and because of the threat from the side of the accused, earlier, two petitions were filed by the deceased in the Police Station and due to the intervention of the police on the basis of her complaint dated 24.02.2016, the accused was compelled to shift his residence to a rented accommodation and thereafter, again on 06.10.2016, the deceased filed a petition in the Police Station against the accused and even though the police searched for the accused, they could not find him.

3. On 11.10.2016, at about 6 a.m., while the deceased was proceeding from her house to the nearby shrine, the accused who was waiting in the rubber estate on the northern side of the house of the deceased approached her with a chopper and on seeing the accused, the deceased ran for her life and while running, the deceased warned her daughter Lissy to close the door by uttering the name of the accused. The deceased ran through the western side of her house towards the lean-to on the south western side of the house of CW2, Vinod, and while the deceased was screaming and knocking on the door of the said house seeking help, the accused who followed her with the chopper trespassed into the lean-to of the said house and inflicted two cut injuries on the left side of the head near the left ear and while the accused was attacking the deceased, CW2 opened the door of his house, and on seeing the occurrence he grabbed the accused. But, the accused escaped from the place of occurrence and in the meanwhile, the deceased who sustained grievous injuries fell inside the room and even though she was taken to Sanjo hospital at Perumbavoor at about 6.30 a.m., she was declared dead and the accused is thereby alleged to have committed the offences as aforesaid.

4. On the basis of Exhibit P1 First Information Statement of the son of the accused, Exhibit P19 FIR was registered by PW22, Station House Officer of Kuruppampady Police Station and thereafter PW23, Inspector of police, Kuruppampady, conducted the investigation and PW25, Inspector of Police, Kunnathunadu, who was in charge of Kuruppampady Police Station, completed the investigation and filed the final report before the Judicial First Class Magistrate Court, Kuruppampady and after committal, the case was numbered as S.C. No. 248 of 2017

5. When the accused was produced before the trial court, charge was framed against him for the offences punishable under Sections 449, 324 and 302 of IPC and when the charge was read over and explained to the accused, he pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 25 and marked Exhibits P1 to P31 and MOs 1 to 7 to prove the charge against the accused. Since it is found that the accused is not entitled for an acquittal under Section 232 Cr.P.C., he was called upon to enter on his defence and from the side of the defence, the accused was examined as DW1.

6. After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, by the impugned judgment dated 25.09.2018, convicted the accused and sentenced him to undergo imprisonment for life and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of 3 years for the offence under Section 302 IPC, to undergo rigorous imprisonment for a period of two years for the offence under Section 324 IPC and to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.10,000 and in default of payment of fine, to undergo rigorous imprisonment for one year for the offence under Section 449 IPC.

7. Heard Sri. C.C. Poulose, the learned counsel for the appellant and the learned Special Public Prosecutor, Smt. Ambika Devi S. and perused the records.

8. The point that arises for consideration in this appeal is whether the conviction entered and the sentence imposed against the accused is legally sustainable.

9. The learned counsel for the appellant argued that as per Exhibit P1 First Information Statement, the allegation is that the accused stabbed the deceased and further the place of occurrence is mentioned as a foot path (thondu), and as per the medical evidence, the deceased sustained 2 cut injuries on her neck near the left ear. It is also pointed out that the evidence of PW2, the occurrence witness examined from the side of prosecution, is that when he opened the door, he saw the accused hacking the deceased with the chopper and it is clear from the evidence of PW2 that the accused inflicted only one cut injury and immediately PW2 grabbed the accused and the prosecution has not explained as to how the deceased sustained the other cut injury and the possibility of the deceased sustaining the fatal injury in some other manner at a place other than the alleged place of occurrence cannot be ruled out.

10. It is also argued that the prosecution has suppressed material facts and there is no explanation as to why no crime is registered immediately after the occurrence, even though it is in evidence that police officers came there immediately after the occurrence. It is argued that there are serious discrepancies and contradictions in the evidence of the material witnesses and it is also argued that there is no satisfactory evidence to show that the accused committed the act with the intention to cause death and even if the entire prosecution allegations are admitted, it cannot be held that the offence under Section 302 of IPC is proved and only the offence under Section 304, Part II of IPC is attracted and therefore, the impugned judgment is liable to be set aside.

11. The learned Special Public Prosecutor argued that PW1 is not a witness to the actual assault and he reached there only after the assault and his evidence before the court clearly shows that his statement in Exhibit P1 regarding the place of occurrence and the nature of the assault is on the basis of the information that he received from his mother when he woke up in the morning on hearing the cries of his mother and that he mentioned the place of occurrence mistakenly in Exhibit P1 and that his evidence before the court will clearly show that he committed the mistake because of his tension and mental condition at the time of giving the First Information Statement immediately after coming to know about the murder of his grandmother, by his own father.

12. The learned Special Public Prosecutor also argued that PW2 is a direct witness to the occurrence and his evidence clearly shows that when he opened the door on hearing the scream of the deceased Eliamma, he saw Eliamma standing near the door and the accused hacking on the left side of the head of Eliamma with knife and immediately after the accused inflicted the cut injury, he grabbed the accused and by that time, Eliamma fell into the room and therefore, it is clear that when PW2 saw the occurrence the accused was hacking the deceased with a knife and there is every possibility that by the time PW2 opened the door, the accused might have inflicted the first cut injury with the knife and considering the nature of the two cut injuries and the circumstance of the case, there is no other possibility for the deceased sustaining the other cut injury and further the nature of the weapon used and the manner in which the accused committed the act will clearly show that the accused committed the act with the intention of causing death.

13. PW2 is a neighbour of the deceased and his evidence shows that previously, the accused was also residing in the house of the deceased on the adjacent northern side of the house where the witness was residing. He deposed that at about 6 a.m., on 11.10.2016, he heard the cries of the deceased Eliamma calling his wife Bindu for help and also knocking on the western door of his house and when he opened the door, he saw the deceased Eliamma and the accused standing there and the accused attacking Eliamma with a knife. The evidence of PW2 shows that the accused and the deceased were standing face to face and the accused inflicted a cut injury with the knife on the left side of the head of Eliamma and when the accused again attempted to attack the deceased with the knife, he immediately grabbed the accused and by that time, Eliamma fell down to the room of his house. The evidence of PW2 shows that he pulled the accused to the western courtyard and there occurred a scuffle between himself and the accused and before they reached the northern side of the house, the accused had thrown the knife to the property on the western side. According to PW2, during the scuffle, his dhoti fell down and then the accused escaped through the road on the northern side.

14. PW3 is the wife of PW2 and her evidence also shows that at about 6 a.m., on 11.10.2016, she heard Eliamma calling her and knocking on the western door of her house. She would say that her husband opened the door and when she reached there, she saw her husband holding the accused and the deceased Eliamma falling to their room. She would say that immediately, she took her child and went out of the house through the same door on the western side and called Lissy and since there was no response from Lissy, she called Sheela residing in the house in front of her house and subsequently neighbours came there and by that time, the accused had left the place through the road.

15. PW4 is the wife of the accused and the daughter of the deceased. According to PW4, her marriage with the accused was on 04.04.1982 and thereafter, the accused was residing with them and prior to the marriage, her father transferred 28 cents of property in the joint names of her and her husband and after about 4 or 5 years, the accused compelled her to sell the property and the accused has used the money for his extravagant acts. PW4 stated that after the death of her father, the house and the property where they are residing, devolved to her and her mother and the accused used to quarrel and create problems asking her to transfer the house and property to his name and in this connection, the accused also used to manhandle her.

16. On 24.07.2014, her mother Eliamma filed a complaint in the Police Station and the police directed the accused to shift his residence and accordingly, the accused started to reside in a rented house at Panikkad. But, even after that, the accused used to come to her house to quarrel and on the day before Easter, the accused after coming to their house, caught on the neck of her mother, who was sitting in a chair and pushed her down. When the neighbours came on hearing their cries, the accused took out a knife from the kitchen and threatened the neighbours and the accused left the place only when the neighbours took possession of the knife from his hands. PW4 also deposed that 3 or 4 days before the occurrence in this case, the accused came to their house with a tapping knife and threatened that he will kill her and her mother.

17. PW4 stated that it was her mother who used to clean the premises of the nearby shrine and in the morning on 11.10.2016, her mother left the house as usual to the shrine and after closing the door, she went inside the room on the southern side where her daughter was sleeping and then she heard her mother asking her to close the door by saying that Poulokunju is coming and also the loud cries of her mother to save her by calling her neighour Bindu. PW4 stated that when she opened the window on the southern side, she saw the accused chasing her mother with a knife and her mother entering the western lean-to of the house of Bindu on the southern side of their house. Thereafter, she heard the loud cries of her mother and then she along with her daughter cried aloud and when her son woke up on hearing the cries, she told him that the accused had stabbed her mother.

18. The evidence of PW4 further shows that at that time, she also telephoned one Biju, who is working as Police Constable at Kuruppumpady Police Station. According to PW4, even though her son opened the door and went out, she was afraid to go out of the house and only after the neighbours came there, she opened the door of the kitchen and went to the house of Bindu along with her daughter and when they reached there, they saw Eliamma lying in the middle room soaked in blood and subsequently, they took the injured to Sanjo Hospital and the doctor, after examining the mother, told them that she is no more.

19. PW5 is the daughter of the accused and PW4 Lissy, and she also deposed regarding the occurrence more or less in the same way as PW4 .

20. PW1 is the son of the accused and PW4 and his evidence shows that on the date of occurrence, when he woke up on hearing the cries of his mother, his mother told him that his father had stabbed his grandmother Eliamma and when he came out of the house, he saw the accused and PW2 Vinod scuffling in the back side of the house of PW2 and at that time, the accused was holding a knife in his hand and he also saw the accused throwing the said knife to the nearby property. The evidence of PW1 shows that by pushing and pulling, the accused and Vinod came to the front side of the house of Vinod and at that time, the dhoti of Vinod happened to fall down and then,the accused ran away to the nearby rubber estate.

21. PW1 also deposed that when he entered the house of Vinod, he saw his grandmother Eliamma lying in the hall room soaked in blood and thereafter, they took her in a car to Sanjo Hospital, Perumbavoor. According to PW1, the doctor, after examining his grandmother, told him that she is no more and thereafter, he proceeded to the Police Station and has given Exhibit P1 First Information Statement. PW1 has also given Exhibit P2 statement under Section 164 of Cr.P.C to the Magistrate. PW1 stated that the accused used to quarrel in the house demanding transfer of the house and property to his name and he committed the act for the reason that his grandmother has not transferred the property to his name. PW1 also deposed that the accused used to work as a butcher and the knife which he was holding at the time of occurrence was used by him for butchering.

22. PW1 also identified MO1 knife before the court and the shirt and dhoti worn by the accused at the time of occurrence as MOs 2 and 3. In cross examination, PW1 admitted that he has not witnessed the accused stabbing the deceased and it was his mother who told him the same and at that time, his sister Linta was also there in the house.

23. PW6 is a neighbour of the deceased Eliamma and his evidence shows that on the date of occurrence, when he came out of the house, on hearing the cries, he saw Bindu and Vinod and when he reached the western side of the house of Vinod, he saw the deceased lying inside the room in supine position and he also saw blood on the floor and injury near the left ear of Eliamma. According to PW6, he also helped to take the injured to the hospital and his evidence shows that he tied a towel around the injury to prevent loss of blood and he identified the said towel as MO5 before the court.

24. PW7 is another neighbour who deposed that the accused and the deceased are known to her and that she is conducting a hotel in her house. She deposed that on 11.10.2016, at about 6 a.m, she opened the tea shop and after storing water in the kitchen, while she was sweeping the courtyard, she heard a cry and thereafter, when she came to the road, she saw the accused coming from the side of their house and even though she enquired him as to what happened, the accused left the place by saying that nothing occurred. Her evidence shows that subsequently, she reached the place of occurrence and saw the victim lying there in supine position.

25. PW8 is a rubber tapper and according to PW8, he saw the accused at about 6.15 a.m., while he was tapping rubber and at that time, as per the request of the accused, he also handed over a beedy to the accused and while the accused was leaving, he told the witness not to tell anybody else that he saw the accused at that time.

26. PW9 is a witness to Exhibit P6 inquest report. PW10 is the Scientific Assistant who collected blood stains from the place of occurrence and also the hair found on the knife and handed over the same to the Investigating Officer. PW11 is the owner of the house where PWs 2 and 3 are residing and according to him, he was present when the police prepared Exhibit P7 scene mahazar. He also witnessed the recovery of MO1 knife by the police from the adjacent property.

27. PW12 is the doctor who conducted the postmortem examination and the evidence of PW12 and Exhibit P9 postmortem certificate shows the following ante-mortem injuries :

“1. Incised wound 8.03 x 3 x 3.5 cm, almost horizontal, on left side of head, across the pinna of left ear with its front extent just in front of tragus of left ear. The wound was seen lying across the middle of pinna of left ear, transecting it into two and exposing its cartilage, scalp tissue, the mastoid cavity and the mastoid air cells. The left mastoid bone (bony prominence of the skull bone behind the ear) was seen cut open up to a depth of 3.5 cm with a beveling downwards. The cartilage of pinna was in a cleanly cut state. The wound margins were seen cleanly cut with minimal bruising of the edges. The middle ear cavity was in an exposed state. The shafts of scalp hair overlying the wound were in a transected state. The posterior auricular vein was in a cut open state, the superficial temporal artery was seen partially cut along with the blood vessels nearby. The wound was seen directed downwards and towards the right side.

2. Incised wound, 4.6 x 0.5 x 1.5 cm, on left side of head, overlying the pinna of left ear; 0.5 cm below the injury no.01 and almost parallel to it. The front end of the wound was seen merging with the injury no.1.”

28. PW13 was the Chief Medical Officer of Sanjo Hospital, Perumbavoor and his evidence shows that on 11.10.2016 at about 6.30 a.m., the deceased was brought dead to the casualty and he had issued Exhibit P10 death intimation to Perumbavoor Police Station.

29. PW14 was the doctor in the Taluk Hospital at Perumbavoor who collected the nail clippings and hair sample of the accused on 11.10.2016 and handed over the same to the Investigating Officer. The certificate issued by PW14 in this connection is marked as Exhibit P11.

30. The Village Officer, who prepared Exhibit P12 scene plan, is examined as PW15 and PW16 is the secretary of Mudakuzha Grama Panchayat, who issued Exhibit P13 certificate, stating that building No.VII/15A is in the ownership of Eliamma and Lissy and he identified his signature and office seal in Exhibit P13.

31. The evidence of PW17 shows that while working as Senior Civil Police Officer at Kuruppampady Police Station on 11.10.2016, at about 6.10 a.m., he got a telephone message from one Lissy that her husband has inflicted cut injuries on her mother and subsequently, along with the Sub Inspector and ASI, they reached the house of Lissy and by that time, the injured was already taken to the hospital. Thereafter, they came to know that the occurrence was in the adjacent house of Vinod and when they reached there, blood was seen in the middle room and the western lean-to and the Sub Inspector posted PW17 to guard the scene of occurrence.

32. PW18 was also on guard duty at the place of occurrence from 8.15 a.m., on 11.10.2016, and his evidence shows that at about 2.30 p.m., the Circle Inspector and Scientific Assistant along with the fingerprint expert and photographer came there to collect the evidence.

33. PW19 was a Woman Civil Police Officer of Kuruppampady Police Station and her evidence shows that after the inquest, the dead body was taken to Kalamassery Medical College and after postmortem, the dead body was released to Mathaikunju, a relative of the deceased.

34. PW20, Senior Civil Police Officer, is a witness to Exhibit P14 mahazar prepared by the Investigating Officer for seizing the dress of the accused and PW20 identified Mos 2 and 3, the shirt and dhoti of the accused.

35. PW21 is a witness to Exhibits P15 and P16 mahazars. The evidence of PW22, Station House Officer of Kuruppampady Police Station shows that the deceased has given a complaint to him on 06.10.2016 and he entered the same in the petition register. The said petition is marked as Exhibit P17. According to PW22, it is stated in the said petition that the petitioner apprehends threat to her life from the husband of her daughter and in spite of conducting investigation, he was not able to find the accused and therefore, he left a message to the owner of the house where the accused is residing to intimate the accused to reach the Police Station on 11.10.2016. The copy of the relevant pages of the petition register in the Police Station is marked as Exhibit P18.

36. PW22 deposed that it can be seen from the petition register that the deceased had earlier filed a complaint on 24.02.2016 before the then Sub Inspector. The evidence of PW22 shows that at about 6.10 a.m., on 11.10.2016, ASI Venugopalan informed him through phone that one Eliamma sustained stab injuries from the husband of her daughter and accordingly, he reached the Police Station and made entries in the general diary and thereafter, reached the place of occurrence and by that time, the injured was already taken to the hospital.

37. PWs 1 , 5 and 4 are the son, daughter and wife of the accused respectively and their evidence shows that they have not witnessed the assault that took place in the lean-to on the western side of the house of PW2. But, it is clear from the evidence of PWs 4 and 5 that they saw the accused chasing the deceased through the window on the southern side of their house. PW1, the son of the accused, has also not witnessed the occurrence that took place in the lean-to on the western side of the house of PW2 and according to PW1, when he came out of the house, the accused and PW2 were scuffling in the courtyard and he also saw the accused throwing the chopper in his hand to the nearby property. The evidence of PWs 4 and 5 clearly shows that they also apprehended threat to their life from the side of the accused and on hearing the scream and cry of the deceased and seeing the accused chasing the deceased with MO1 knife, they were terrified and so, they were able to come out of the house only after the neighbours reached there.

38. The evidence of PW1 in cross examination clearly shows that he stated the nature of the attack and place of occurrence on the basis of the information he received from his mother, when he woke up in the morning on hearing the cries of his mother and sister and that immediately, he came out of the house and subsequently, the victim was taken to the hospital in a car and after the doctor informed him that his grandmother is no more, he proceeded to the Police Station to give the First Information Statement and in between, he had no opportunity to ascertain the details of the actual occurrence from others who witnessed the occurrence and in that circumstance, the discrepancy pointed out by the defence regarding the exact place of occurrence and the nature of the attack as stated by PW1 in Exhibit P1 cannot be accepted as a material contradiction affecting the core of the prosecution case.

39. Further, the occurrence in this case was at about 6 a.m., on 11.10.2016 and Exhibit P19 FIR was registered at 10.49 a.m. on 11.10.2016 and therefore, it can be seen that there is a prompt FIR in this case. Even though FIR is not a piece of substantive evidence, great importance is attached to a prompt FIR, as it reduces the chance of improvement in the prosecution story.

40. The learned counsel for the appellant argued that it is in evidence that PW4 contacted PW17, Police Constable, through phone at the time of occurrence and it is not in dispute that PW17, along with PW22, Sub Inspector, reached the place of occurrence at about 6.20 a.m. and in spite of examining the place of occurrence, there was no attempt on the part of PW22, Sub Inspector, to record the statement of any witness to register the crime.

41. But, it is pertinent to note that the evidence of PW22 clearly shows that when he reached the place of occurrence, the injured was already taken to the hospital for treatment and he has taken steps for guarding the scene of occurrence and there is nothing in his evidence to indicate that PW2 or other occurrence witnesses were available there at that time and further, he was also not aware about the death of the victim at that time and in that circumstance, the normal procedure is to record the statement of the injured for registering the crime and hence, it cannot be held that there is any illegality in the procedure adopted by PW22 and we find that the contention of the learned counsel for the appellant in this regard is not legally sustainable.

42. The learned counsel for the appellant argued that it is clear from the evidence of PW2 that the accused inflicted only one cut injury and that when the accused attempted to attack the deceased again, PW2 grabbed the accused and pulled him to the courtyard. But, the findings in the postmortem shows that the deceased sustained 2 cut injuries on her neck near the left ear and therefore, the possibility of the deceased sustaining the other fatal cut injury from some other person before the alleged occurrence in the lean-to of the house of PW2 cannot be ruled out.

43. It is clear from the evidence of PWs 4 and 5 that on hearing the scream of the deceased, they opened the window on the southern side of their house and saw the accused chasing the deceased towards the western side of the house of PW2 and that the accused was also holding MO1 knife in his hand at that time and the evidence of PW2 also shows that he opened the door on hearing the cries and knock of the deceased on the door on the western side of his house and when he opened the door, the accused and the deceased were standing face to face and he saw the accused hacking the deceased with MO1 knife on the left side of the head.

44. It is true that PW2 has categorically deposed that immediately he grabbed the accused and pulled him to the courtyard. But, from the evidence of Pws 2, 4 and 5 regarding the occurrence, the possibility of the accused already inflicting a cut injury on the left side of the head by the time PW2 opened the door of his house cannot be ruled out. Further, the previous and subsequent conduct of the accused and the adequate motive proved and the facts and circumstance of the case clearly shows that there is no other possibility of the deceased sustaining the ante-mortem injuries noted in the postmortem certificate, and therefore, we find that there is no merit in the contention of the learned counsel for the appellant in this regard .

45. Another contention of the appellant is that there is no satisfactory evidence to prove that he committed the act with the intention of causing death and therefore, it cannot be held that the prosecution has proved the offence under Section 302 of IPC and at the maximum, he can be punished only for the offence under Part II of Section 304 IPC. But, in this case, there is clear evidence regarding the motive and previous attempts on the part of the accused and further, the deceased has also filed petitions in the Police Station stating that she apprehends danger to her life from the side of the accused.

46. It is in evidence that the deceased used to visit the nearby shrine every morning and the accused is also aware about the same and the fact that the accused came there in the early morning armed with MO1 knife and inflicted the cut injuries after chasing the victim upto the lean-to of the house of PW2 clearly shows that the accused committed the act with proper planning. It is in evidence that MO1 Knife is used for butchering and considering the nature of the weapon used and the manner in which the accused committed the act, we have no hesitation to hold that the accused inflicted the fatal injuries on the vital part of the deceased with the intention of causing death and therefore, we find that there is no reason to disagree with the findings of the trial court that the accused is guilty of the offence under Section 302 IPC.

47. It is in evidence that the accused trespassed into the house of PW2 and assaulted the deceased with the knife while the deceased was standing in the lean-to of the house of PW2 and therefore, we also find no reason to interfere with the findings of the trial court that the accused committed the offence under Section 449 IPC and therefore, we confirm the conviction and the sentence passed against the appellant/accused for the offences punishable under Sections 302 and 449 IPC.

48. As per the impugned judgment, the court below has also found the accused guilty of the offence punishable under Section 324 IPC and also sentenced him to undergo rigorous imprisonment for a period of two years. But, in view of section 71 of IPC, which provides that where an offence is made up of parts, each of which constitutes an offence, the offender should not be punished for more than one offence, unless expressly provided and that when an offence falls within two or more separate definitions of offences or when several acts, of which one or more than one would, by itself or themselves, constitute an offence constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences, we find that conviction and sentence for offences punishable under Sections 302 and 324 IPC together will be double conviction and sentencing for the same acts committed against the same person and therefore, the court below is not justified in imposing separate conviction and sentence for the offence under Section 324 IPC, when he is already convicted and sentenced for the offence under Section 302 IPC.

49. Therefore, while confirming the conviction and sentence imposed against the appellant/accused for the offences under Sections 302 and 449 of IPC, the conviction and sentence passed against the accused/appellant for the offence under Section 324 IPC is set aside.

50. In the result, this appeal is partly allowed as above.

51. Interlocutory applications, if any, pending shall stand closed.