S.K. KRISHNAN, J. - (1.) THIS appeal has been preferred by the accused/appellant against the conviction and sentence passed in S.C.No.57 of 1995 dated 14.2.1996 by the Principal Sessions Judge, Coimbatore.
(2.) THE facts, leading to the filing of this appeal, in brief, are as follows: (a) Five years prior to the date of occurrence, both the appellant and the deceased Kanniyappan occupied Poramboke land of Noiyal river at Karumarampalayam and they have been residing at the Northerm side of the river. (b) THE deceased Kanniyappan was working as a coolie under the appellant, a building contractor. Since the appellant was not prompt in making payment of wages to the deceased and there was a dispute between them, the deceased had chosen to work as a coolie under one Mari Boyan. (c) Having got irritated by the attitude of the deceased, the appellant came to the house of the deceased on 12.2.1994 at about 11.00 p.m. and on his shouting, the deceased came out of the house and there was some altercation between them. During such altercation, the appellant, took a knife from his waist and stabbed the deceased on his chest and all over his body indiscriminately. (d) On seeing this gruesome attack, P.W.1 Kuppammal, wife of the deceased, and his daughter Chitra cried. On hearing the cry of P.W.1, P.W.2 Palanisamy, came to the scene of occurrence and witnessed the attack by the appellant on the deceased. P.W.3 Ramasamy, also came to the scene of occurrence and saw the fleeing away of the appellant. (e) THEreafter. P.W.1 and P.W.2 took the deceased to the Government Hospital, Tiruppur, where, he was admitted by P.W.6 Doctor, who issued accident register Ex.P-6. (f) After admitting the deceased, P. W. 1 went to Tiruppur North Police Station and gave an oral complaint, which was reduced into writing by P.W. 10 Head Constable, who registered a case, on the basis of the complaint Ex.P-1, in Cr.No. 194 of94 under Sec.326, I.P.C. P.W.10 sent Ex.P-1 and the F.I.R. Ex.P-16 to the Judicial Magistrate No.1, Tiruppur and also a copy of Ex.P-16 to P.W.11 Sub Inspector of Police. (g) P.W.11, who took up the investigation, on 13.2.1994 recorded the statement of the deceased and P.W. 1 at the hospital and thereafter he proceeded to the scene of occurrence and prepared observation mahazar Ex.P-2 and rough sketch Ex.P-18 in the presence of P.W.4 Sakthivel and one Vijayabalan and also recovered bloodstained earth M.0.2 and sample earth M.0.3 under Ex.P-3 Mahazar. (h) THEreafter, around 11.00 a.m., P.W.11 arrested the accused and on the basis of his confession Ex.P-4, P.W.11 recovered the knife M.O.I under the cover of Ex.P-5 Mahazar in the presence of P.W.5 Abibulla Sait and one Abu Baker. (i) During enquiry, P.W.11, found an injury on the forehead of the appellant and when he was asked about the injury, the appellant gave a counter complaint, which was registered by P.W.11, in Cr.No.217 of 1994 under Secs.341 and 323, I.P.C. and sent the appellant to the Government HospitalTiruppur with a police memo for receiving first aid treatment from P.W.7 and after examination P.W.8 issued a wound certificate Ex.P-9. THE appellant was, thereafter, sent to judicial custody. (j) On 16.2.1994 at about 8.30 p.m., P.W.11 got the information from the Medical College and Hospital, Coimbatore, that the deceased Kanniyappan died at 2.50 p.m., and therefore, he altered the case into one under Sec.302, I.P.C. and sent the Express F.I.R. Ex.P-21 to the Judicial Magistrate No.1, Tiruppur and thereafter, he sent the files to the Inspector of Police, (k) P.W.12 Inspector of Police took up further investigation. On 17.2.1994, at Coimbatore Medical College and Hospital in front of the panchayatadars, he conducted inquest over the body of the deceased and prepared inquest report Ex.P-22. He then made further enquiry on the witnesses P.W. 1 to 3 and sent the body of the deceased for the post mortem examination with the requisition Ex.P-7. After examining the Doctors P.W.6 and P.W.7 and observing all the formalities and on completion of the investigation, he filed a charge sheet under Sec.302, I.P.C. before the Court of Judicial Magistrate No.1, Tiruppur. (1) Further, P.W.12, referred the counter case, given by the appellant, registered in Cr.No.217 of 1994 as mistake of fact and sent the referred report Ex.P-23 to the Court. The prosecution, to prove the above case, examined 12 witnesses, filed 23 exhibits and marked 3 material objections before the trial Court. When the trial Court questioned the accused under Sec.313(l)(b), Crl.P.C, the accused totally denied the case of the prosecution as false. No witness was examined and no exhibit was filed on the side of the defence. But the appellant/accused filed a statement before the learned sessions Judge, stating that on the fateful day around 11.30 p.m., while he was returning to this home, since the deceased was making public nuisance in a drunken state with an aruval and when the same was asked by the appellant, the deceased cut the appellant with the aruval and thereafter, he went to the police station and gave a complaint, which was not registered and on the next day, the police obtained a signature under threat and he was sent to the hospital. Further, he stated that since the persons who assembled there, attacked the deceased, he sustained injuries and that the prosecution witnesses gave false evidence. On the basis of the oral and documentary evidence, the trial Court, convicted the accused/ appellant under Sec.302, I.P.C. and sentenced him to undergo life imprisonment. Aggrieved against the conviction and sentence passed by the learned Principal Sessions Judge, Coimbatore, the present appeal has been preferred by the appellant.
(3.) WE have heard the learned counsel appearing for the appellant and also the learned Additional Public Prosecutor. The learned counsel appearing for the appellant would vehemently contend that the conviction and sentence passed by the learned Sessions Judge, is not at all sustainable for the following reasons. (a) The motive stated by the prosecution is not at all established through the prosecution witnesses. (b) The circumstances shown by the prosecution case would reveal that following the quarrel between the accused and the deceased due to the sudden provocation, the accused stabbed the deceased and not with the intention to cause the death of the deceased. (c) The eyes witnesses P.W.2 and P.W.3., could not have seen the accused for the reason that the said occurrence had taken place in dark. Therefore, the conviction on the appellant has to be set aside and the appellant is entitled for acquittal. Per contra, the learned Additional Public Prosecutor would contend that the conviction and sentence passed by the learned Sessions Judge warrants to interference of this Court for the reason that the prosecution case has been proved beyond reasonable doubt by the prosecution witnesses. ;