Bhaskaran Vs. State, Represented by Inspector of Police - Court Judgment

Excerpt:
criminal - murder - section 302 and exception 1 to section 300 of indian penal code, 1860 and section 374 (2) of criminal procedure code, 1973 - appeal against conviction under section 302 - evidence proved that accused himself committed murder and surrendered before village administrative officer - accused confessed murder - in view of apex court decision cause of quarrel is not relevant nor is it relevant who offered provocation or started assault - offence committed by accused would fall under exception 1 to section 300 - conviction under section 302 liable to be set aside - accused liable to be convicted under section 304. - securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation act is read along with sub-section (12) of section 19 of recovery of debts due to bank is and financial institutions act, it would be clear that the tribunal also has jurisdiction to pass interim orders under section 17 of the securitisation act in appropriate cases. the tribunal is empowered to grant interim stay subject to such conditions as may be deemed proper including condition of deposit. even under section 69 of the transfer of property act, the only remedy of the borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the tribunal can restore possession of such secured assets to the borrower. by virtue of sub-section (7) of section 17 of the securitisation act read with section 19 (12) of the recovery of debts due to banks and financial institutions act the tribunal undoubtedly possess ancillary power to pass interim orders subject to the conditions as it may deems fit and proper to impose, but it does not in any way override the special provisions contained in section 17(3) of the securitisation act. the statutory scheme of the securitisation act is such that the borrower could take recourse to application under section 17 only if one or other measure is taken by the secured creditor, and the tribunal can restore the status quo ante only if it comes to the conclusion that any of the measure taken by the secured creditor is not in accordance with the provisions of the act. the scheme cannot be bypassed by issuing a mandatory order for redelivery of the possession before conclusion of the proceedings under section 17--sections 17, 13 (4); [a.p.shah, c.j., f.m. ibrahim kalifulia &v. ramasubramanian, jj] scope of enquiry under section 17 held, the main purpose of the securitisation act, and in particular section 13 thereof, is to enable and empower the secured creditors to take possession of their securities and to deal with them without the intervention of the court. therefore, in an application under section 17, the tribunal is concerned only with the validity of the acts of the secured creditor in taking possession of the securities and dealing with the same under section 13. all such grounds, which would render the action of the bank/financial institution illegal, can be raised before the tribunal in the proceedings under section 17. it is for the tribunal to decide in each case whether the action of the bank was in accordance with the provisions of the act and legally sustainable. however, while considering the question of validity of the action of the bank, it is not necessary for the tribunal to adjudicate the exact amount due to the secured creditors. in other words, the purpose of an application under section 17 is not the determination of the quantum of claim per se as the tribunal is concerned with the issue of the validity of the measures taken by the banks/financial institutions under section 13(4)--sections 17(4), 13(4) ; [a.p. shan c.j.,f.m.ibrahim kalifulla & v. ramasubramanian, jj] appeal right of bank held, the right of the bank is not automatically suspended upon filing of an appeal by borrower under section 17 of the securitisation act and the bank as secured creditor can proceed to auction secured asset where no stay is granted by the tribunal. there is nothing in section 17 of the securitisation act which would indicate that the legislature intended that there would be automatic stay of recovery proceedings by bank under section 13(4) on filing an appeal by borrower under section 17. use of the expressions if and then under section 17 would not mean that the bank can take one or more measures laid down under section 13(4) only if the tribunal declares that the action taken already is in accordance with the provisions of the securitisation act and the rules made thereunder. use of the word if does not connote a condition precedent. it is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they harmonized with the object of the statute and which effectuate the object of the legislature. the provisions of section 17 must, therefore, receive such construction at the hands of the court as would advance the object and at any event not thwart it. in other words, the principle of purposive interpretation should be applied while construing the said provisions. the securitisation act is enacted to provide a speedy and summary remedy for recovery of thousands of crores which were due to the banks and financial institutions. m. karpagavinayagam, j.1. bhaskaran, the accused, was convicted for the offence under section 302 ipc. challenging the same, this appeal is filed.2. the facts, in brief, leading to conviction are as follows:-a) the accused bhaskaran and the deceased janaki are husband and wife. they have got three children. the first son is studying in college, the second son and the daughter are studying in school. the accused suspected that the deceased janaki had illicit intimacy with pw.9 joyi. due to this, frequent quarrel ensued between them.b) on 20.6.1997 at about 9.15 am., the deceased janaki was preparing breakfast in the kitchen. the first son had gone to college and the second son and daughter had gone to school. at that time, the accused came and questioned the deceased as to where she went and came back. she told that she went and tied the bull and then came back. the accused scolded her stating that she was telling lie. then, there was a wordy quarrel ensued between them. he accused her that she was having some illegal connection with somebody else. she challenged him that she would go with anybodyelse and she could not be questioned. on getting enraged at this, the accused took out a knife and threatened her showing the same. then, the deceased swiftly went inside the kitchen and took a bottle and beat the accused over his head and chest. the accused then attacked the deceased and caused injuries on the neck, shoulder etc with the knife. she fell down unconscious in the kitchen and then, after a few minutes, she died.c) then, the accused, with mo.1 knife, came out and proceeded to police station. on his way, he saw pw.2 achuthan, who was ploughing the field. the accused requested pw.2 to accompany him to police station. since he did not inclined to accompany him, the accused went to pw.1 village administrative officer, surrendered and gave extra judicial confession. pw.1 recorded the statement given by the accused at 10 am. ex.p1 is the statement. pw.1 prepared ex.p2 report and then took the accused to police station. he handed over exs.p1 and p2 to pw.10 head constable. mo.1 knife was also produced to him. d) pw.10 registered a case for the offence under section 302 ipc. he prepared ex.p7 fir and sent intimation to superior officers. pw.17 inspector of police took up investigation and went to the scene of occurrence and prepared ex.p.20 rough sketch and ex.p4 observation mahazar. he conducted inquest on the dead body between 12.50 and 4 pm and prepared ex.p.21 inquest report. during the course of inquest, he examined pws.1, 2, 3, 4, 5, 9 and others. he recovered mo.2 blood stained broken bottle pieces, which were found in the hands of the deceased. further, he recovered mo.3 bloodstained sample earth. he sent the dead body for post-mortem. e) pw.13 dr. natarajan conducted post-mortem on 20.6.1997 and issued ex.p11 post-mortem certificate and gave an opinion that the deceased would appear to have died of shock and haemorrhage due to cut injuries and stab injury on the skull. pw. 17 inspector of police, in the meantime, arrested the accused on 20.6.1997 at 4.40 pm. since the accused had injuries on the body, he was sent to government hospital for treatment on 20.6.1997 at about 8.30 pm. pw.16 dr. chandrababu examined him and found injuries. ex.p19 is the accident register. pw.17 examined other witnesses and made arrangements for sending the material objects for chemical examination. thereafter, he continued the investigation. after completing the investigation, he filed the charge-sheet under section 302 pick.g) during the course of trial, on the side of prosecution, pws.1 to 18 were examined, exs.p1 to p21 were filed and m.os.1 to 7 were marked.h) when the accused was questioned under section 313 cr.p.c with regard to incriminating materials, he simply denied his complicity in the crime. i) the trial court ultimately found the accused guilty under section 302 ipc and sentenced him thereunder.3. while assailing the judgment and conviction, mr. n. duraisami, learned counsel for the appellant, would take us through the entire evidence and vehemently contend that the only piece of evidence, which is available in this case, is extra judicial confession, which cannot be acted upon, as the same has not been prepared by the village administrative officer in accordance with the procedures contemplated in law and as such, the accused is liable to be acquitted. in the alternative, mr. n. duraisami would contend that even assuming that the entire case of the prosecution is true, the offence committed by the accused would not fall under section 302 ipc and at the most, it would fall only under exception 1 of section 300 ipc, as the accused committed the offence by grave and sudden provocation and consequently, he could be convicted only under section 304 (part i) ipc.4. to substantiate the above submissionst, mr. n. duraisami, learned counsel for the appellant cited the following decisions:- '1. surinder kumar v. union territory, chandigarh 1989 l.w. 406 2. nagarajan v. state 1993 l.w 31 3. rajendran/gopal v. state of tamil nadu etc. 1997 2 l.w. 520 4. venkatesan v. state by inspector of police, tiruporur 1997 2 l.w 532 5. sathiyanathan v. state 1997 (1) mwn 320 and 6. v. raja v. state rep. by the inspector of police, etc. 1999 2 l.w. 467. '5. we have heard mr. e. raja, learned additional public prosecutor also on the above aspects. 6. on going through the entire materials available on record, we have no hesitation to hold that the accused himself, after committing the murder of his wife, went and surrendered before pw.1 village administrative officer and thereafter, pw.1 prepared ex.p1 complaint and ex.p2 report and went to police station and produced there and handed over ex.p1 and ex.p2 to pw.10 head constable. on receipt of the message from pw.10, pw.17 inspector of police, came to the scene of occurrence and recovered broken bottle pieces, which were found in the hands of the deceased. he has also recovered blood stained earth etc.7. apart from the extra judicial confession in ex.p1 complaint, we have got the evidence of pw.2 to whom the accused confessed that he committed the murder of his wife.8. it is submitted that pw.1, the village administrative officer, did not follow the procedure by sending the copies of exs.p1 and p2 to the tahsildar. but, a perusal of exs.p1 and p2 would clearly show that one copy was sent to the tahsildar. therefore, we are unable to hold that the procedure contemplated in law has not been followed by p.w.1. on the other hand, in our view, the extra judicial confession given by the accused to the village administrative officer has to be held as voluntary particularly when it contains minute details about the occurrence and as such the same can be acted upon.9. the next question to be considered is as to whether the accused is liable to be convicted for the offence under section 302 ipc or lesser offence. as noted above, in this case, the conviction has to be based only on the basis of the extra judicial confession ex.p1. on going through ex.p1, it is clear that at about 8.45 am on 20.6.1997, the accused came to the house and asked the deceased-wife as to where she had gone.. she said that she went to the field to tie the bull. then, the accused, suspecting her fidelity, scolded her stating that she was telling lie and that she had gone somewhereelse. then,, the deceased got angry and said 'mkhz;;lh ehd; vt';fpl;l ntz;lbkd;whyk; ngha;tpl;l tuntd;' thereby meaning 'i would go and share bed with anybody else'. on getting provoked, the accused took out a kinfe and threatened the deceased that he would murder her. then, the deceased swiftly went inside the kitchen and took out the bottle and beat on the head of the accused. in that process, the bottle got broken and the accused sustained injuries on the head. then, the accused with the knife and went near her by showing the same and threatened her. the deceased, with broken bottle, beat the accused and inflicted injuries on the chest. on seeing the bleeding injuries on his chest, the accused got further provoked and gave cuts with vettukathi on the left neck, shoulder and head of the deceased two or three times. with the result, the deceased fell unconscious and within a few minutes, she died. at about 9.15 am., the accused left the house and thereafter, surrendered before the village administrative officer.10. on going through the contents of ex.p1, as mentioned above, it is clear that though initially the accused provoked the deceased to get her angry by saying that she was telling lie and she had gone out for some other illegal purpose, it is clear that the deceased used abusive language and said that she would go and share bed with any person. these words, in our view, would certainly make the accused to have a sudden and grave provocation. at that time, the accused threatened the deceased that he would murder her. on fearing that she would be attacked, she went inside the house, took the bottle and began to attack the accused on head and chest and only then, the accused got further provoked and caused injuries on the deceased, which resulted in her death.11. it is pointed out by mr. n. duraisami, learned counsel for the appellant that the cause of quarrel is not relevant, nor is it relevant who offered the provocation or started the assault. in this context, mr. n. duuraisami, the learned counsel for the appellant would point out the observations made by the supreme court in surinder kumar v. union territory, chandigarh (cited supra) as follows:-' the cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault.' so, the above observations of the supreme court, in our view, would squarely apply to the present facts of the case.12. consequently, it has to be held that the offence committed by the accused would fall under exception 1 of section 300 ipc and he is liable to be convicted only under section 304 (part i) ipc. the conviction under section 302 ipc is set aside and instead, the accused is convicted under section 304 (part i) ipc and sentenced to undergo rigorous imprisonment for a period of seven years. 13. with the above modification in the conviction and sentence, the appeal is dismissed. 14. the service rendered by mr. n. duraisami, legal-aid counsel, is highly appreciated.