BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/7/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY CRL.A.(MD) No.175 of 2010 S.Kamaraj .. Appellant vs State represented by The Inspector of Police Keeranur P.S. Cr.No.122/2008 Pudukottai District .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Pudukottai, made in S.C.No.34 of 2009 dated 17.9.2009. !For Appellant ... Ms.S.Devasena ^For Respondent ... Mr.Isaac Manuel Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM, J.)
Challenge is made to a judgment of the Principal Sessions Division,
Pudukottai, made in S.C.No.34 of 2009 whereby the sole accused/appellant stood
charged under Sections 294(b) and 302 of IPC, tried, found guilty as per the
charges and awarded life imprisonment along with a fine of Rs.1000/- and default
sentence under Sec.302 IPC and a fine of Rs.250/- with default sentence under
Sec.294(b) IPC.
2.Short facts necessary for the disposal of this appeal can be stated
thus:
(a) P.W.1 is the brother of the deceased Natarajan. P.W.4 is a close
relative of the deceased. P.Ws.1 and 4 and the deceased were the residents of
Kummupatti. P.Ws.2 and 3 are the residents of Chettipatti. P.Ws.1 and 4 and the
deceased went to Chettipatti to eke their livelihood. P.Ws.1 to 5 and the
deceased went to Keeranur on 1.5.2008, to attend a festival. At about 4.30
P.M., when they were standing nearby Keeranur Bus Stand, the appellant/accused
who came there in a drunken mood, dashed on the deceased. When the deceased
questioned the same, the appellant/accused after uttering filthy words, got into
the nearby shop and took a soori knife and stabbed the deceased on different
parts of the body. P.Ws.1 to 5 who all witnessed the occurrence, chased him;
but the accused who was having a knife in hand, intimidated them. Then the
severely injured Natarajan was taken to the hospital where he was declared dead
by the Doctor.
(b) P.W.1 proceeded to the respondent police station, where P.W.14 was the
Sub Inspector of Police on duty. On the strength of Ex.P1, the report, given
by P.W.1, a case came to be registered in Crime No.122 of 2008 under Sec.302 of
IPC. The printed FIR, Ex.P10, was despatched to the Court.
(c) On receipt of the copy of the FIR, P.W.15, the Inspector of Police of
that Circle, took up investigation, proceeded to the spot, made an inspection
and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P11.
Then he conducted inquest on the dead body of Natarajan in the presence of
witnesses and panchayatdars at the mortuary and prepared an inquest report,
Ex.P12. He also recovered from the place of occurrence bloodstained earth and
sample earth under a cover of mahazar. The dead body was photographed through
P.W.7, the Photographer. M.O.7 series are the photos.
(d) Pursuant to the requisition made, P.W.8, the Civil Assistant Surgeon,
attached to the Government District Head Quarters Hospital, Pudukkottai, has
conducted autopsy on the dead body of Natarajan and has issued a postmortem
certificate, Ex.P5, wherein he has opined that the deceased would appear to have
died of multiple injuries and injuries to vital organs and shock.
(e) Pending investigation, on 3.5.2008 at about 11.00 A.M., the accused
was arrested when he was under treatment. The confessional statement
voluntarily given by him was recorded, and he was sent for judicial remand. All
the material objects were sent for chemical analysis. Accordingly, they were
subjected to which brought forth two reports namely Ex.P8, the chemical
analyst’s report, and Ex.P13, the serologist’s report. On completion of
investigation, the Investigating Officer filed the final report.
3.The case was committed to Court of Session, and necessary charges were
framed. In order to substantiate the charges, the prosecution examined 15
witnesses and also relied on 16 exhibits and 13 material objects. On completion
of the evidence on the side of the prosecution, the accused was questioned under
Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence
of the prosecution witnesses, which he flatly denied as false. The trial Court
heard the arguments advanced on either side, made scrutiny of the materials,
took the view that the prosecution has proved the case beyond reasonable doubt
and hence entered a judgment of conviction and sentenced him to imprisonment as
referred to above. Hence this appeal at the instance of the appellant.
4.Advancing arguments on behalf of the appellant, the learned Counsel
would submit that according to the prosecution, the occurrence has taken place
at about 4.30 P.M. on 1.5.2008, in a public bus stand at Keeranur; that P.Ws.1
to 5 who were shown as occurrence witnesses, have categorically deposed that
they were all closely related to and friendly with the deceased, and thus they
were all interested witnesses; that admittedly, there were number of independent
witnesses at the place since it was a bus stand; but, no one of them was
examined; that the Investigating Officer has candidly admitted that when the
accused was arrested, he was under treatment in the Government Hospital at
Tanjore; that immediately after the occurrence, the accused was taken to the
Government Hospital, Pudukottai, and thereafter, he was admitted at Tanjore
Hospital where he had continuous treatment; and that at the time when he was
questioned under Sec.313 of Cr.P.C., he filed a detailed written statement
wherein he narrated the incident; that he has clearly clearly narrated that at
the time of occurrence, he was surrounded by all the persons, and his dhothi was
removed and it became shameful, and one of the persons by name Arasan examined
as P.W.1, stabbed him, and thus he sustained injuries; that the prosecution
never explained how he sustained injuries, and thus it would be quite clear that
the prosecution has not placed the genesis of the occurrence or the true and
relevant facts before the Court in order to take a correct decision, and under
the circumstances, he is entitled for acquittal.
5.Added further the learned Counsel that even if the Court comes to the
conclusion that it was the appellant/accused who attacked the deceased and
caused his death, the act of the accused would not attract the penal provision
of murder since at the time of occurrence, there was a wordy altercation between
the deceased and the accused which fact is admitted by all the witnesses; that
while the accused was in a drunken mood, all the witnesses surrounded him and
removed his dhothi, and it became shameful; that being provoked by the same, he
has attacked the deceased, and hence the act of the accused would not fall under
Sec.302 of IPC, but it would be a culpable homicide not amounting to murder, and
this has got to be considered by this Court.
6.The Court heard the learned Additional Public Prosecutor on all the
above contentions and paid its anxious consideration on the submissions made.
7.It is not in controversy that in an incident that had taken place at
about 4.30 P.M. on that day at the Bus Stand, Keeranur, the deceased was done to
death. Following the inquest made by P.W.15, the Inspector of Police, and
preparation of the inquest report, the dead body was subjected to postmortem by
P.W.8, the Doctor, attached to the Government Hospital, who has given a
categorical opinion as a witness before the Court and through the contents of
the postmortem certificate that the deceased died out of multiple injuries
sustained by him and injuries to vital organs and shock. The fact that he died
out of homicidal violence was never disputed by the appellant before the trial
Court, and hence the trial Judge was perfectly correct in recording so.
8.In order to substantiate that it was the accused who attacked the
deceased with the soori knife on different parts of the body, the prosecution
examined P.Ws.1 to 5 as eyewitnesses. It is true that all the witnesses were
closely associated to the deceased. But, on that ground, the evidence of these
witnesses cannot be rejected. A careful scrutiny of the evidence of these
witnesses would clearly indicate that all of them at that time, were waiting
there to board a bus, and the accused came in a drunken mood, and he dashed on
the deceased, and the same was questioned by the deceased. The evidence would
further go to show that at that time, using the filthy language, the
appellant/accused took a soori knife and attacked him. The evidence of these
witnesses inspired the confidence of the Court, and the trial Judge has rightly
accepted the same. That apart, this ocular testimony projected by the
prosecution through P.Ws.1 to 5, stood fully corroborated by the medical
evidence adduced by the prosecution through P.W.8 and the contents of the
postmortem certificate, Ex.P5. Besides that, the material objects were sent for
chemical analysis, and the blood group was found to be tallying with that of the
deceased as per the Serologist’s report. Thus the scientific evidence also
stood in favour of the prosecution.
9.Now, the contention put forth by the learned Counsel for the appellant
that the accused sustained injuries on different parts of the body cannot be
accepted for two reasons. Firstly, even in Ex.P1, the report, it is
categorically stated that immediately after the occurrence, the accused was
running from the place, and he was chased by the witnesses, and at that time, he
stabbed himself on different parts of the body. Apart from that, though the
accused has stated that one of the witnesses by name Arasan namely P.W.1,
stabbed him, he has not even mentioned the same to any one or given a police
complaint. In fact, there is no material to accept the same. It remains to be
stated that the accused has not produced any accident register copy or any
documentary evidence in that regard in order to prove the nature of the injuries
sustained by him. On the contrary, the prosecution witnesses have clearly
stated that immediately after the occurrence, he inflicted injuries to himself.
It is pertinent to point out that at the time of occurrence, he was in a drunken
mood. Under the circumstances, the non-explanation of the injuries on the body
of the appellant cannot be a reason to suspect the prosecution case. Thus the
contentions put forth by the learned Counsel for the appellant do no merit
acceptance. It can be well stated that the prosecution by the above evidence,
has proved candidly that it was the accused who stabbed the deceased to death at
the time and place as put forth by the prosecution.
10.As far as the second line of argument is concerned, this Court is able
to see force in the contention put forth by the learned Counsel for the
appellant. P.Ws.1 to 5 have categorically admitted that at the time of
occurrence, the accused came in a drunken mood and dashed on the deceased. The
same was questioned by the deceased. Even in the statement filed by the
appellant at the time of questioning under Sec.313 of Cr.P.C., he has
categorically stated that all the persons have surrounded him and removed his
dhothi when he was in a drunken mood, and it became shameful, and in such
circumstances, he took the knife and stabbed him. Thus it would be quite clear
that the accused who was in a drunken mood, being provoked by the shameful act
of the witnesses, has stabbed the deceased, which is neither intentional nor
premeditated, but due to provocation. Hence the act of the accused would not
attract the penal provision of murder, but it is only a culpable homicide not
amounting to murder, and he has got to be found guilty under Sec.304 (Part I) of
IPC and awarding a punishment of seven years Rigorous Imprisonment would meet
the ends of justice.
11.Accordingly, the conviction and sentence of life imprisonment imposed
by the trial Court on the appellant/accused under Sec.302 of IPC are set aside,
and instead, he is convicted under Sec.304 (Part I) of IPC and is directed to
suffer seven years Rigorous Imprisonment. The sentence already undergone by him,
shall be given set off. The fine imposed by the trial Court will hold good.
12.In the result, this criminal appeal is, accordingly, disposed of.
nsv
To
1.The Principal Sessions Judge
Pudukottai
2.The Inspector of Police
Keeranur P.S.
Cr.No.122/2008
Pudukottai District
3.The Section Officer
Criminal Section
4.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai.