Judgment:
ORDER
R. Balasubramanian, J.
1. The appellant, in the appeal stands convicted by judgment dated 20,3.1998 in S.C. No.34/96 on the file of Court of Sessions, Tirunelveli, for offences under Sections 449, I.P.C. and 302, I.P.C. (2 Counts). For the former offence, he stands sentenced to undergo 2 years RI and for the latter offence, on each count, he was sentenced to undergo 14 years Rl. The sentence imposed on each count of murder was directed to run consecutively. Finding that the sentence of 14 years RI imposed for the offence of murder, on each count is illegal, we caused notice to be issued to the appellant as to why, if the Court ultimately agrees with the finding rendered by the learned Sessions Judge on that offence, the sentence imposed on him by the Sessions Court should not be enhanced to fit in with the sentence prescribed by law. Notice was served on the accused in prison and he sent a written response stating that the offence complained of could not be under Section 302, IPC but only under Section 304(III) ,IPC (probably, an error for 304(II), IPC) and therefore, he must be taken out of the rigour of Section 302, IPC. Since, the counsel on record was not before this Court at all times when the appeal was taken up for hearing, we appointed Mr. N. Duraisamy, a learned member of the bar having 38 years of experience on the Criminal side, not only in this Court, but also before the Trial Court, as a legal aid counsel, by order dated 26.2.2003. A set of material papers was handed over to the learned counsel in Court itself and the learned counsel submitted that if the appeal is taken up for hearing today, he would be in a position to argue the appeal. Accordingly, the appeal is heard by hearing the arguments of the learned counsel for the appellant and the learned Additional Public Prosecutor for the State.
2. The case of the prosecution is that annoyed over the illicit intimacy of his wife with one Shanmuganathan, the accused, on 6.10.1994, at 01.00 hrs, trespassed into the house of the said Shanmuganathan and committed his murder and in the course of the same transaction, when Leelavathi, wife of Shanmuganathan attempted to intervene, she was also stabbed to death. Therefore, the offences under Section 449, IPC and Section 302, IPC (2) Counts). For convenience sake, we shall refer to the deceased namely, Shanmuganthan and Leelavathi as D-l and D-2 respectively in this judgment. To substantiate the charge, the prosecution examined P.Ws 1 to 3 as eye-witnesses to the occurrence, out of whom, P.Ws 2 and 3 turned hostile. P.W.2 is the husband of P.W.I while P.w.3 is a local village leader. D-l and D-2 are the parents of P.W.1. Her evidence would show that she, along with her husband, was inside the house on the day of occurrence, at that time, both the deceased were sleeping inside the house in the verandah while P.Ws 1 and 2 were sleeping inside the house on the southern portion. During the occurrence time, she heard the murmuring noise of her father and mother and when she and her husband woke up, they saw the accused attacking D-l first on his head, neck, shoulder and other parts and the body. On seeing D-l being attacked, D-2 stepped in and she was also not spared by the accused, who cut her indiscriminately. The witnesses shouted and on hearing their shout, P.W.3 also came there. The accused ran away with the weapon of offence in his hand. Thereafter, P.W.1, along with others, went to the Police Station, where she gave an oral complaint before P.W.10, the Sub-Inspector of Police, who reduced the same into writing. It was read over to her and she singed in it attested by P.W.2. The said complaint is Ex.Pl.
3. P.W.10 is the Sub-Inspector of Police, who speaks about P.W.1 appearing before him at 4 a.m. on 6.10.94 and giving a complaint, which he registered as Ex.Pl in his Police Station Crime No. 132/94 for an offence under Section 302, IPC. Ex-P13 is the printed First Information Report prepared by him and he sent the material records to the Court as well as to the higher officials. P.W.12 is the police constable, who carried the material records to the Court as well as to the higher officials. The material records were handed over by him in Court at 5.15 a.m. on the same day. P.W.15 is the Investigating Officer, who, on receipt of information over wireless at 4.30 a.m. on 6.10.94 from P.W.10, directed him to bring the material records to the scheme of occurrence, where he reached by 6 a.m. On collecting the material records, he commenced the investigation. In the presence of P.W.4 and another, he prepared Ex.P2, the Observation Mahazar and Ex.P20, the rough sketch. Between 7 a.m. and 10 a.m. he conducted inquest over the dead body of D-l in the presence of panchayatars and witnesses. Ex-P21 is the Inquest Report of D-1. During inquest, he examined P.Ws 1 to 3 and recorded their statements. Then, he sent the dead body of D-l for. postmortem through police constable P.W.13. From 10 a.m. till 12.30 p.m. on the same day, he conducted inquest over the dead body of D-2 in the presence of the same panchayatars and prepared Ex.-P22, the Inquest Report in regard thereto. During the said inquest, he read out the statements recorded from the aforesaid witnesses. Through police constable P.W.14, he sent the dead body of D-2 for postmortem. He gave one requisition for each postmortem.
4. P.Ws 13 and 14 are the respective police constables, who were present during postmortem on the body of D-l and D-2. After postmortem, P.W.13 removed M.O.9 - lungi from the dead body of D-l and handed over the same under Form 95 - Ex.P19 to the Investigating Officer. P.W.8 is the doctor, who did postmortem on the body of D-1 on receipt of Ex-P9 requisition. He commenced postmortem at l0.am. on 7.10.94 and found various symptoms as noted in Ex.P10, the postmortem report. The Doctor is of the opinion that the deceased would appear to have died about 32-36 hours prior to autopsy due to injury to vital organs (spinal cord) and due to shock and haemorrhage due to injuries sustained. P.W.9 is the doctor, who did postmortem on the body of D-2 on receipt of Ex-P11 requisition. She commenced postmortem at 12.15 p.m. on 7.10.94 and found various symptoms as noted by her in Ex-P12, the postmortem certificate. The Doctor is of the opinion that death would have occurred about 34-36 hours prior to autopsy and the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained. (As Exs-P10 and P12 are in English and form part of the records, we are not restating the symptoms as noted therein once again in this judgment to same time).
5. P.W.I5 continued the investigation further by examining witnesses and recording their statements. Form the place where the dead body of D-l was lying, he recovered a bloodstained mat, a bloodstained towel, a bloodstained brick and a sample brick at 12.30 p.m. in the presence of P.W.4 under a valid mahazar. At 12.45 p.m., from the place where the dead body of D-2 was lying, he recovered a bloodstained mat and three bloodstained bricks in the presence of the same witnesses under a mahazar. He arrested the accused at 4 a.m. on 9.10.94 in the presence of P.W.6 and another. At that time, the accused gave a voluntary confession statement, the admissible protion of which is Ex-P8. Pursuant to Ex-P8, M.Os 7 and 8 came to be recovered under Ex-P7 attested by witnesses. P.W.5 is the photographer, who took photographs of the scene of occurrence on the direction of the Police Officer. M.O.5 series and M.O.6 series are the photographs and the negatives. P.W.15 sent the case properties to the Court with a requisition to subject the same for chemical examination. P.W.11, the Magisterial Clerk, speaks about the receipt of the case properties along with requisition Ex-P14 sent by the Investigating Officer and sending the case properties to the laboratory as an enclosure to Court's letter Ex-P15. Exs-Pl6 and P17 are the Chemical Examiner's Report and Serologist's Report respectively. After completing the investigation, P.W.15 filed the final report in Court against the accused on 13.10.94 for offences under Section 302, IPC (2 counts) and Section 449, IPC. On being questioned under Section 313, Cr.P.C. with reference to the incriminating materials made available against him by the Investigating Officer, the accused accepted the evidence of P.W.I when it was put to him by question No. 2. He also admitted the evidence of P.W.3 as true when put to him by question No. 4. The recovery, as spoken to by the prosecution, was also admitted by the accused when it was put to him by question No. 19. Neither documentary nor oral evidence was brought before Court at his instance.
6. Mr. N. Duraisamy, learned counsel appearing for the appellant, relying upon the history of the case attached to Ex.P9, the requisition given by P.W.15 to the medical officer to conduct postmortem on the body of D-l, would submit that the materials noted therein definitely constitute sustained provocation for the accused to commit the murder of D-l and therefore, the conviction of the accused for the offence under Section 302, IPC cannot be sustained. The learned counsel, by taking us through the oral evidence of P.W.I, requested us to disbelieve it. We heard the learned Additional Public Prosecutor on the above points.
7. On a perusal of the records, we find that the charges were framed by the Court of Sessions on 4.2.97. All the charges namely, charge No. l for the offence under Section 449, IPC, charge No. 2 for the offence under Section 302, IPC had been read over to the accused and he pleaded guilty to all the charges. It is not as though the accused went back on his plea of guilt referred to above and we find, in fact, that the had admitted his involvement in the crime when he was questioned under Section 313, Cr.P.C. Question No. 2 put to him at the time of his questioning under Section 313 of the Code is based on the oral evidence of P.W.1 as an eye-witness to the occurrence and the accused had admitted her evidence before Court as true. In his answer to question No. 4 relating to the oral evidence of P.W.3, the accused had admitted that the house of D-l is next to his and that after cutting, he ran away. Question No. 19 put to the accused is the oral evidence of P.W.6 regarding the arrest of the accused; recording his confession statement and recovery of M.O.s 7 and 8 under Ex-P7 and the accused had affirmed it as true. Therefore, there are enough materials on record to show that the accused had not disputed his involvement in the crime. Anyhow, by way of abundant caution, we also applied our mind to the oral evidence of P.W.1. Her oral evidence is crisp and clear about the involvement of the accused tin perpetrating the crime on her parents resulting in their death. No material worth mentioning is available in her evidence, which would discredit her evidence in chief examination regarding the occurrence proper. The cause of death of both the deceased is shown to be due to homicidal violence and the medical evidence in regard to the same is that of P.W.8, who did postmortem on the body of D-l and P.W.9, who did postmortem on the body of D-2 coupled with Exs-P10 and P12, the respective postmortem certificates. Therefore, the above referred to materials, leave no room at all to doubt the case of the prosecution holding the accused responsible for causing the death of Shanmuganathan and Leelavathi in this case. It may be true that the history of the case attached to Ex-P9 would show that the accused was annoyed over his wife having an illicit intimacy with D-l. But, we find from the other materials on record that the accused had not taken any stand based on such illicit intimacy of his wife with D-l. Assuming without conceding that there is a point in favour of the accused for causing the death of D-l due to sustained provocation, yet, there is absolutely no justification for him to commit the murder of D-2. Therefore, looking from any angle, the conviction of the accused/appellant for committing the murder of D-2 cannot be set aside. As already referred to above, except the history of the case attached to Ex-P9, there is no other material to show that D-l was having an illicit affair with the wife of the accused, which constituted the source for his sustained provocation due to which he had acted in the manner as brought to the notice of the Court. Therefore, we have no hesitation in confirming the conviction of the accused for the offence under Section 302, IPC (2 counts) and for the offence under Section 449, IPC.
8. Let us now apply our mind to the sentence imposed by the learned Sessions Judge for the offence of murder on 2 counts. Law prescribes only two punishments for a person found guilty of the offence under Section 302, IPC and they are either death or life imprisonment. The Courts of law have no authority to impose any other sentence than the one prescribed by law. But, we find that the learned Sessions Judge, while finding the accused guilty of the offence under Section 302, IPC on both the counts, was inclined to sentence him to 14 years, RI on each count and also gave a further direction that the said sentences would run consecutively. We also though very carefully as to whether we would be committing any illegality in taking up the appeal ourselves after having issued notice for enhancement of punishment. However, inasmuch as there is no scope in law to award any punishment other than death or life imprisonment for the offence under Section 302, IPC and in view of the overwhelming materials referred to earlier, on record, showing the involvement of the accused in the offence, we are of the considered opinion that no prejudice at all would be caused to the accused if the appeal is taken up and disposed of by us.
9. Consequently, while confirming the conviction of the accused for the offence under Section 449, IPC and the sentence imposed thereon and also the conviction under Section 302, IPC (2 counts), we are inclined to set aside the sentence of 14 years, RI imposed by the learned Sessions Judge on each count and instead, sentence him to undergo imprisonment for life on each count with a further direction that the sentences imposed for the offence under Section 449, IPC and for the offence under Section 302, IPC (2 counts) would run concurrently. The appeal is disposed of accordingly.
10. We place on record our deep appreciation for the assistance rendered by Mr. N. Duraisamy, a learned member of the bar, who was appointed as legal aid counsel and the State Legal Aid Board is directed to remunerate him suitably.