(Appeal under Section 374(2) of Criminal Procedure Code against the judgment of the learned Additional Sessions Judge (Fast Track Court No.II), Thoothukudy, in S.C.No.320 of 2001, dated 15.04.2002.)

S. Ashok Kumar, J.

The appellant, the sole accused in Sessions Case No.320 of 2001 on the file of Additional Sessions Judge (Fast Track Court No.II), Thoothukudy, has filed this appeal against the judgment, dated 15.04.2002, convicting him under Sections 302 and 326 I.P.C. and sentencing him to undergo life imprisonment for the offence under Section 302 I.P.C. and three years rigorous imprisonment for the offence under Section 326 IPC and also ordering the sentences to run concurrently.

2.The brief facts of the prosecution case are as follows:

(a) The deceased Vellaiammal is the wife of one Subramanian (since dead). The accused is none other than the own brother of the said Subramanian. From 1996 onwards, there were frequent quarrels between the said Subramanian and his brother, the accused, over the sharing of the properties and there were cases and counter cases in the criminal court pending before the learned Judicial Magistrate, Tiruchendur.

(b) On 23.04.1998, the deceased Vellaiammal and her husband Subramanian went by a trucker to Sathankulam, from where they wanted to proceed to Tiruchendur to attend the Court. Along with them, P.W.1 Vedhakkan also travelled in the same trucker. The son of the deceased P.W.2, by name Ramachandran, who is also an accused in the criminal case pending before the Judicial Magistrate Court, Tiruchendur, reached the place of occurrence, namely, Sathankulam Bus-stand, by bus. Vellaiammal, her husband Subramanian and P.W.1 got down from the trucker. The accused, who was already there, by catching hold of the tuft of Vellaiammal slashed her throat with M.O.1 knife. Thereafter, he also inflicted stab injuries on the left chest of Vellaiammal, who fell on the spot and dead. When her husband Subramanian intervened and tried to stop the accused from attacking his wife, the accused also caused injuries on Subramanian.

(c) Immediately, Subramanian went to Sathankulam Government Hospital, where he was admitted at 9.30 a.m. on the same day. Before the Doctor, Subramanian has stated that the injuries were caused to him on 23.04.1998 by a known person when he prevented the said person from attacking his wife. Ex.P-13 is the wound certificate issued to the said Subramanian.

(d) An intimation was sent to the local police, who rushed to the hospital and recorded the statement of the said Subramanian and the said statement is Ex.P-15. P.W.13 Sub-Inspector of Police, Santhankulam Police Station, on the strength of Ex.P-15 statement, registered a case in Crime No.141 of 1998 for the alleged offences under Section 302 and 324 I.P.C. and prepared Ex.P-14 printed FIR and despatched the same to the Judicial Magistrate Court, Tiruchendur, and the copies to higher authorities.

(e) P.W.13 Sub-Inspector of Police, since the Inspector of Police was on leave, as per the instruction of the Superintendent of Police, himself took up the investigation on the same day, visited the place of occurrence, made an observation and prepared Ex.P-4 observation mahazar in the presence of P.W.5 and one Sivasami. He also drew Ex.P-16 rough sketch. Thereafter, he conducted inquest on the body of the deceased from 11.30 a.m. in the presence of Panchayatdars and prepared Ex.P-17 inquest report. During inquest, P.W.13 examined some of the witnesses and recorded their statements. Thereafter, he sent the body of the deceased to Sathankulam Government Hospital for postmortem with a requisition.

(f) P.W.6 Dr.P.Thanasekaran, on receipt of the body along with the requisition, conducted autopsy on the body of the deceased on the same day at 3.00 p.m. and found the following injuries.

"A vertically 8 cm x Horizontally 10 cm cut injury, extending from left side of neck upto the right side of neck. Below extended upto the sterno clavicular junction. Trachea, carotid, artery, internal jugular vein, para sympathetic chain and superficial muscles of neck cut on both sides and exposed outside. Another cut injury vertically 2cm x transversely 3 cm x depth 2 cm exposing muscle present over left side of chest just at the level of clavicle exposing left side clavicle. A linear cut injury present over right side face extending base of mandible upto the ankle of mouth exposing facial muscles. A skin abrasion 2 cm x 2 cm present over from just below the mandible. Heart-16 ounce, pale, all chambers are empty. Lungs 18 ounce, pale. Hyoid - intact. Stomach - 16 ounce, pale. Liver - 40 ounce, pale. Spleen - 8 ounce, pale. Both kidneys pale, 8 - ounce. Bladder empty."

P.W.6, on completion of postmortem, issued Ex.P-6 postmortem certificate opining that the deceased would appear to have died of haemorrhage shock and neurogenic shock produced by injuries sustained by her 5 to 7 hours prior to postmortem. After postmortem, P.W.10 Head Constable recovered M.O.4 Sari, M.O.5 blouse, M.O.6 (series) a pair of chappals and M.O.7 petti coat from the body of the deceased and handed them over in the police station.

(g) P.W.13 Sub-Inspector of Police continued the investigation and seized M.O.8 dhoti, M.O.9 shirt of Subramanian, produced by him at the time of giving Ex.P-15 complaint, under a cover of mahazar. He also seized M.O.2 bloodstained earth and M.O.3 sample earth under a cover of mahazar. On 24.04.1998, at 5.30 a.m., at Paikulam bus-stop, in the presence of P.W.4 village Administrative Officer and his Assistant Vembu, P.W.13 arrested the accused. The accused volunteered to give a confession statement and the admissible portion of it is Ex.P-18. The accused also produced M.O.1 knife, which was hidden in his hip. M.O.10 is the cover of M.O.1 knife. P.W.13 remanded the case properties and the accused for judicial custody. He sent a requisition to the learned Judicial Magistrate, Tiruchendur, to send the case properties for chemical analysis. Ex.P-11 is the Chemical Analysis Report and Ex.P-12 is the Serologists Report.

(h) P.W.14 Inspector of Police took up the further investigation in the case and examined the Sub-Inspector of Police, Head Constable and Doctors and recorded their statements. On completion of investigation, P.W.14 Inspector of Police, filed final report on 09.06.1999 against the accused for the alleged offences under Sections 302, 326 and 324 I.P.C.

3. Before the learned Sessions Judge, on behalf of the prosecution, witnesses P.Ws.1 to 14 were examined and Exhibits P-1 to P-18 as well as M.Os.1 to 10 were marked. On the side of the accused, one witness was examined as D.W.1 and three documents were marked as Exs.D-1 to D-3. When the accused was questioned under Section 313 Cr.P.C. about the incriminating circumstances found in the evidence of prosecution witnesses, he has denied them either as false or not known. The trial court, on consideration of both the oral and documentary evidence produced on behalf of both the sides, found the appellant/accused guilty under Section 302 and 326 I.P.C., convicted thereunder and sentenced him to undergo life imprisonment for the offence under Section 302 I.P.C. and three years rigorous imprisonment for the offence under Section 326 IPC and ordered the sentences to run concurrently. Aggrieved by the same, the sole accused has preferred this appeal.

4. Before this Court, Mr.G.R.Edmund, learned counsel appearing for the appellant, would contend that P.W.1 has not supported the prosecution case, P.W.2 could not be an eye-witness and there is no reliable evidence to connect the appellant/accused with the crime alleged. Per contra, Mr.K.Radhakrishnan, learned Additional Public Prosecutor, would contend that there is strong enmity between the accused and the family members of the deceased and the husband of the deceased could not be examined in the court because he died before the commencement of the trial and, therefore, his statement before the Medical Officer when he was admitted in the hospital and his statement before the police Ex.P-15, based on which FIR was registered, can be taken as dying declarations and along with this evidence, the evidence of P.W.2, the son of the deceased, sufficiently establish that this appellant/accused alone could have committed the offence.

5. We have given our careful consideration to the rival submissions of the learned counsel on either side.

6. The motive for the occurrence is said to be the dispute with regard to some property, which resulted in criminal cases between the accused on the one side and the family members of the deceased on the other side. The accused is none other than the own brother of the husband of the deceased. It is not disputed that from 1996 onwards there were cases and counter cases pending in the court of Judicial Magistrate, Tiruchendur.

7. On the date of occurrence, i.e. 23.04.1998, the deceased, her husband Subramanian and his son P.W.2 had to appear in the Judicial Magistrate Court, Tiruchendur, and for that purpose, the deceased and her husband Subramanian travelled in a trucker upto Sathankulam bus-stand and their son P.W.2 came there by bus, at which time, this appellant/accused is said to have slashed the throat of the deceased and also stabbed on the left chest of the deceased. The injury on the throat was so severe that it had cut the trachea, carotid artery, internal jugular vein and all the muscles of the neck which is sufficient to cause instantaneous death. After inflicting such a serious injury, the accused has also caused stab injury on the left chest of the deceased. Further, when Subramanian, the husband of the deceased, tried to prevent the appellant/accused from attacking his wife, the accused has caused injuries on Subramanian also and the injuries sustained by him are mentioned in Ex.P-13 wound certificate issued to him. Subramaiam has sustained as many as 10 injuries, out of which injury Nos.2 to 10 were all on his both hands and fingers, which would prove that the said Subramanian, the husband of the deceased, tried to prevent the accused from inflicting injuries on his wife. P.W.2 has cogently spoken about the occurrence in his evidence and seems to be natural one.

8. Though the occurrence is said to have taken place at 9.00 a.m. at Sathankulam bus-stand, at 9.30 a.m., the said Subramanian admitted himself in the Government Hospital at Sathankulam and at that time, he has narrated that when a known person attacked his wife with knife, he tried to prevent and sustained injuries in the said course of transaction. This statement of Subramanian before Dr.Rajeswari who admitted him in the hospital, on whose behalf P.W.12 Doctor was examined, can be taken as dying declaration.

9. On an intimation to police, P.W.13 Sub-Inspector of Police has gone to the hospital and recorded Ex.P-15 statement of Subramanian at 10.00 a.m. and on the strength of Ex.P-15, P.W.13 Sub-Inspector of Police registered a case against the accused under Sections 302 and 324 IPC and Ex.P-14 printed FIR has reached the Magistrate Court at 12.45 p.m. on the same day. Thus, it is clear that either in lodging the complaint or registering the case or in the FIR reaching the Court, there is no delay. The said Ex.P-15 statement of Subramanian can be treated as Dying Declaration, because he could not be examined to mark this document since he was dead before trial. Of course, the said statement has not been subjected to cross-examination. Though P.W.1 has turned hostile, P.W.2, son of the deceased, has deposed about the occurrence in a cogent manner and we do not find any reason to doubt his evidence.

10. Another important aspect is the circumstantial evidence which lends support to the ocular evidence. On 24.04.1998, i.e. very next day of the occurrence, at 5.30 a.m., the accused was arrested at Paikulam bus-stop in the presence of P.W.4 Village Administrative Officer Shanmugam and one Village Menial by name Vembu. At that time, the accused has given a confession and the admissible portion of which is Ex.P-18 and pursuance to the said confession, the accused has produced M.O.1 knife and M.O.10 cover of the knife from his hip. When the case properties were sent for chemical analysis, human blood was detected in M.O.8 dhoti and M.O.9 shirt of the injured Subramanian. M.O.2 bloodstained earth also found contained human blood. M.O.4 sari, M.O.5 blouse and M.O.7 petti coat worn by the deceased were also found contained O group human blood and M.O.1 knife was also found contained human blood. The accused has been arrested within less than 24 hours of the occurrence and bloodstained M.O.1 knife has been recovered and it was found contained human blood.

11.This important circumstantial evidence supports the ocular evidence of P.W.2. The medical opinion also supports the prosecution case that the injuries caused on the husband of the deceased and the deceased Vellaiammal could have been caused by a knife like M.O.1. The nature of injuries sustained by the deceased and her husband could have been caused by a weapon like M.O.1 as deposed by P.W.6 and P.W.12 Doctors. There is no reason to doubt the evidence of P.W.2. We do not find any reason to suspect or disbelieve the case of the prosecution. The trial court has rightly found the accused guilty under section 302 and 326 IPC, convicted him thereunder and imposed sentences for the proved charges and we find no merit to interfere with the same and, therefore, this appeal deserves to be dismissed.

12. Accordingly, this criminal appeal is dismissed.