BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12/11/2008
CORAM
THE HONOURABLE MR.JUSTICE R.REGUPATHI
AND
THE HONOURABLE MR.JUSTICE R.SUBBIAH
Crl.A(MD)No.1127 of 2001
Mangan ... Accused/Appellant
Vs.
The Inspector of Police,
Samarasampettai Police Station,
Trichy District. ... Complainant/Respondent
Prayer
Appeal filed under Section 374(2) of Cr.P.C., against the order of
conviction and sentence passed by the Principal Sessions Judge, Tiruchirapalli,
in Sessions Case No.219 of 2000 on 06.09.2001.
!For Appellant ... Mr.A.Padmanaban
^For Respondent ... Mr.D.Issac Mohanlal
Additional Public Prosecutor
:JUDGMENT
(Judgment of the Court was delivered by R.REGUPATHI, J.)
The appellant, sole accused in the case, is the elder brother of the
deceased and P.W.1. There was a property dispute between the accused on the one
hand and the deceased and P.W.1 on the other hand. After partition of the
property, the deceased and P.W.1 sought the consent of the accused for laying
pipe-line to take water to their lands. Since the accused declined therefor, the
deceased and P.W.1 laid pipe-line on 05.11.1999. On the same day, at 03.00 p.m,
the accused damaged the pipeline, whereupon, the deceased and P.W.1 went to the
residence of the accused and questioned his action, resulting in a wordy
quarrel, in which the accused armed with knife, stabbed the deceased on the
right side of the back and when P.W.1 made an attempt to prevent the same, he
stabbed P.W.1 on the left side of the stomach, resulting in registration of the
case. Learned Principal Sessions Judge, Trichy, framed charges against the
accused under Section 302 and 324 IPC and trial was taken up against them in
S.C.No.219 of 2000.
In order to bring home the guilt of the accused, the prosecution examined P.Ws.1
to 13, marked Exs.P.1 to 20 and produced M.Os.1 to 6. By order dated 06.09.2001,
the learned trial Judge found the accused guilty as charged and sentenced him to
undergo life imprisonment and Rigorous Imprisonment for one year respectively
for the offences under Sections 302 and 324 IPC and the substantive sentences
were ordered to run concurrently. Aggrieved against the said order of conviction
and sentence, the present appeal has been preferred.
2.The prosecution case, as put forth by its witnesses, is concisely
narrated below:-
P.W.1, in his evidence, has stated that there was property dispute
between the accused on the one hand and the deceased and P.W.1 on the other
hand. After the property was partitioned, the accused was quarreling with the
deceased and P.W.1 on the grievance that excess lands were taken by them. Under
such circumstances, the deceased and P.W.1 wanted to lay a pipe-line for taking
water to their lands and the accused refused to co-operate with them and
therefore, the deceased and P.W.1 jointly laid the pipe-line on 05.11.1999. On
the same day, at 03.00 p.m, the accused damaged the pipe-line and, at 05.00
p.m., the deceased and P.W.1 went to the residence of the accused to question
him as to why he damaged the pipe-line laid by them. At that time, a wordy
quarrel ensued between them and the accused, in which, the accused took out a
knife and on seeing the same, the deceased started running from the scene of
occurrence however the accused chased him and delivered a stab on the back and
when P.W.1 attempted to prevent the same, he stabbed P.W.1 on the stomach.
P.W.4, wife of the deceased and other witnesses came to the scene of occurrence
and on seeing them, the accused ran away from there. M.O.1 is the weapon of
offence. P.W.1 was conscious and P.W.6 the father-in-law of the deceased took
him in a car to the Government Hospital, Trichy. On reaching the hospital, the
deceased was declared dead. P.W.1 was admitted in the hospital.
P.W.2, the Medical Officer at the Government Hospital, Tiruchi, on
examining the deceased at 6.45 p.m. declared him dead and issued the Accident
Register, Ex.P.4. P.W.2, on the same day at 6.55 p.m. examined P.W.1 and found
simple injury on the stomach and issued Accident Register and Wound Certificate,
Exs.P.2 and P.3 respectively.
P.W.11, the Sub Inspector of Police, on receipt of the death intimation
under Ex.P.7 at 7.30 p.m. reached the Government Hospital, Tiruchi, received the
complaint Ex.P.1 given by P.W.1, returned back to the police station and
registered a case in Crime No.543 of 1999 under Sections 302 and 324 IPC. He
despatched copies of the First Information Report/Ex.P.17 to the Judicial
Magistrate and higher officials in the Department.
P.W.4 wife of the deceased corroborated the evidence of P.W.1. She speaks
about the motive part of the prosecution as well as the occurrence. P.W.5,
though cited as an eye-witness in the case, turned hostile. P.W.6 is the
father-in-law of the deceased and it was he who brought the deceased and P.W.1
to the hospital.
P.W.12, the Investigating Officer, on receipt of the copy of the First
Information Report at 8.45 p.m. on 05.11.1999 reached the occurrence place,
prepared Rough Sketch and Observation Mahazar Exs.P.18 and 8 respectively and
recovered bloodstained earth, sample earth and bloodstained dhoti, M.Os.2 to 4
respectively under Ex.P.9 in the presence of P.W.7. On 6.11.1999, at 6.00 a.m;
he conducted inquest over the dead body of the deceased at the hospital. Ex.P.19
is the Inquest Report. The dead body of the deceased was despatched through
P.W.9 Head Constable for conducting Post Mortem.
P.W.3, the Medical Officer, on receipt of requisition from the
Investigating Officer, conducted Post Mortem on 6.11.1999 at 10.30 a.m., and
issued Ex.P.6 Post Mortem Certificate, wherein, he noticed the following:-
“External Injuries: An oblique cut injury 2.5 cm in length 2.5cm from the
midline at the level of L1 & L2 vertebra on the right side Broke passed upto 10
cm in length.
Internal Examination:-
1) Heart:300gm contains blood. 2)Lungs: 550 gm each pale. 3) Hyoid Bone:
Intact 4) Stomach: Empty. Pale. 5) Liver:1500gm Pale 6) Spleen:100gm pale 7)
Right Kidney: Full thickness cut extending from upper pole ventricular down for
a length of 3 cm of Kidney: Normal pale 8) Intestine: distended with gas and
faccal mater about 1500ml dark coloured fresh blood retro peritoneal cavity 9)
Skull: Normal Brain and Membrane Normal 10) Spinal Column intact”.
The doctor opined that the deceased would appear to have died of shock and
haemorrhage on account of injury to vital organ right kidney 16-14 hours prior
to autopsy.
On 6.11.1999 at 5.00 p.m, the Investigating Officer arrested the accused
in the presence of P.W.8, Village Administrative Officer and in pursuance of the
confession statement given by the accused under Ex.P.10, recovered M.O.1 knife
as per Ex.P.11 Mahazar. Thereafter, noticing injuries on the accused, the
Investigating Officer forwarded him to the Government Hospital, Tiruchirappalli,
for treatment. P.W.13, Medical Officer examined the accused on 6.11.1999 at
09.15 p.m., and issued Ex.P.20 Accident Register wherein he found the following
injury:
“Lacerated injury an day old which right frontal region 4×1/4×1/4cm”.
Thereafter, the accused was produced before the Magistrate for judicial
custody. The bloodstained material objects recovered through P.W.10, Head
Constable were forwarded along with a requisition Ex.P.13 to the Court for
receiving opinion from chemical analysist. Exs.P.15 and 16 are chemical analysis
and serological reports respectively.
The Investigating Officer, after examining the witnesses and receiving
medical and forensic opinions, concluded the investigation and laid final report
against the accused on 16.11.1999 for offences punishable under Sections 302
and 324 IPC.
The learned trial Judge, with reference to the incriminating materials
adduced by the prosecution, questioned the accused Under Section 313 Cr.P.C.,
and for which, he pleaded not guilty. A written statement was filed in which it
is stated that on 05.11.1999 at about 05.00 p.m., the deceased and P.W.1 came
running towards the accused with a stick and questioned him as to how he could
damage the pipe-line. Though the accused denied the same, the deceased indulged
in quarrel and assaulted him on the head. Under such circumstances, only to save
his life endangered at the hands of the deceased and P.W.1, he took out the
knife and stabbed them. According to him, the occurrence had been taken place
only because of the abusive language and assault by the deceased and P.W.1.
Further, at the hospital, he did not inform the medical officer about the person
who caused injuries since the police officer advised him not to divulge the same
to the Doctor.
The learned trial Judge on perusal of the materials placed and considering
the arguments advanced on both sides, convicted and sentenced the
appellant/accused as stated supra.
3.Learned counsel for the appellant submitted that the presence of the
accused at the scene of occurrence and the attack by the accused on the deceased
and P.W.1 are doubtful. From Ex.P.1 and the evidence of P.Ws.1, 4 and 5, it
could be seen that the occurrence took place in front of the house of the
accused preceded by a wordy quarrel between the accused on the one hand and the
deceased and P.W.1 on the other hand and ultimately, the accused also sustained
injury on the forehead. It is projected by the prosecution as if that such
injury was sustained due to fall and such story, as put forth by the
prosecution, is unbelievable. The accused, during cross examination as well as
by submitting written statement explained the manner in which he sustained
injury and as to why he attacked the deceased and P.W.1. According to him, if
the circumstances in which the accused sustained the injury and attacked the
deceased and P.W.1 are considered in the light of the explanation offered by the
defence, one may conclude that the offence under Section 302 IPC is not made
out.
4.Per contra, learned Additional Public Prosecutor submitted that the
occurrence was witnessed by P.Ws.1 and 4, who have vividly narrated about the
motive part of the prosecution case as well as the occurrence. The occurrence
took place at 5 P.M. and without much lapse of time, complaint was given at the
police station at 8.55 p.m. which is situated 12 kms away from the place of
occurrence At 11.00 p.m., the First Information Report reached the Court
situated 11 kms away from there. On the same day at 03.00 p.m., it was the
accused who damaged the pipe-line laid by the deceased and the occurrence took
place at the time when the deceased and P.W.1 went to the place of the accused
to question his conduct. At that time, it was the accused, who took out a knife
and stabbed the deceased as well as P.W.1. The case of the prosecution has been
well substantiated through the evidence of P.Ws.1, 4 and 6 and such evidence is
corroborated by the medical evidence. The injury on the accused has also been
explained i.e., it was sustained due to fall. The reasons given by the trial
Court is well founded.
5.We have perused the materials available on record and considered the
submissions made on either side.
6.The deceased and P.W.1 are the younger brothers of the accused. There
was a land dispute due to which there used to be frequent quarrels between them.
The accused did not co-operate with the deceased and P.W.1 for laying pipe-line
in the land. It is the case of the prosecution that, on the same day i.e.,
05.11.1999 at 03.00 p.m, the pipe line was damaged by the accused whereas it was
claimed by the accused that the deceased and P.W.1 came to his residence
suspecting that the accused had damaged the pipe-line. During cross examination
as well as in the written statement filed by the accused, the defence taken by
the accused was that the deceased, armed with stick, assaulted him on the
forehead. Though it has been claimed by the prosecution that such injury was
sustained due to fall, on a perusal of the evidence of P.W.13, Medical Officer
who examined the accused, we find that such injury could have been caused by
assault with a stick. Therefore, we are of the view that the occurrence would
have taken place in the manner as spoken to by the accused. During the wordy
quarrel, it is all probable that the accused might have taken the knife while
he was keeping in the waist and attacked the deceased as well as P.W.1. The
occurrence had taken place in a spur of moment and it took place in front of the
residence of the accused, hence, it could be inferred that there was no
intention or premeditation on the part of the accused to cause the death of the
deceased. Further, looking at the injury inflicted, we find that it was not
caused on the vital part of the body of the deceased and when P.W.1 intervened,
he also received simple injury on the stomach. The accused in his written
statement has given explanation as to why and how he caused the injury on the
deceased and P.W.1. Under such circumstances, we are of the considered view that
the offence under Section 302 IPC is not made out. However, he has caused injury
with knife on the back of the deceased thereby committed the death of the
deceased and there is no dispute regarding the injury caused to P.W.1.
7.In a case law reported in 1983 SCC (Cri) 459 (Jagtar Singh Vs. State of
Punjab), it has been held as follows:
“The question is whether in the circumstances in which the appellant gave
a blow with a knife on the chest, he could be said to have intended to cause
death or he could be imputed the intention to cause that particular injury which
has proved fatal? The circumstances in which the incident occurred would clearly
negative any suggestion of premeditation. It was in a sudden quarrel to some
extent provoked by the deceased, that the appellant gave one blow with a knife.
Could it be said that para 3 of Section 300 is attracted. We have considerable
doubt about the conclusion reached by the High Court. We cannot confidently say
that the appellant intended to cause that particular injury which is shown to
have caused death. There was no premeditation. There was no malice. The meeting
was a chance meeting. The cause of quarrel though trivial was just sudden and in
this background the appellant, a very young man gave one blow. He could not be
imputed with the intention to cause death or the intention to cause that
particular injury which has proved fatal. Neither para 1 nor para 3 of Section
300 would be attracted”.
8.In another case law reported in 1984 SCC (Cri) 759 (Tholan Vs. State of
Tamil Nadu), it has been held as follows:
“….we are satisfied that even if exception 1 is not attracted, the
requisite intention cannot be attributed to the appellant. But in the
circumstances herein discussed he wielded a weapon like a knife and therefore he
can be attributed with the knowledge that he was likely to cause an injury which
was likely to cause death. In such a situation, he would be guilty of committing
an offence under S.304 Part II of the Penal Code”.
9.In yet another decision reported in 2005 SCC (Cri) 123 (State of M.P Vs.
Deshraj and others), it has been ruled thus:-
“9.Applying the factual scenario noticed by the trial court and the High
Court, more particularly the fact that there was a fight between the accused and
the deceased and the injured witnesses, and the injuries came to be inflicted in
the course of sudden quarrel, it would be appropriate to convict Respondents 2
to 10 under Section 304 Part II IPC. Custodial sentence of eight years would
meet the ends of justice”.
In the peculiar facts and circumstances of the case, applying the principles
laid down by the Apex Court in the above referred case laws, the order of the
trial Court, convicting and sentencing the appellant for the offence under
Section 302 is set aside, instead, the appellant is convicted under Section 304
Part II IPC and sentenced to undergo rigorous imprisonment for three years.
In the circumstances of the case, the conviction and sentence under Section 324
IPC passed by the Trial Court stand confirmed. The period of punishment, if any,
already undergone by the appellant/accused shall be given set off.
10.The criminal appeal is allowed to the extent indicated above. It is
reported that the accused is on bail. The learned trial Judge concerned is
directed to take steps to secure the presence of the accused and commit him to
Prison to undergo the remaining period of sentence.
sms
To:
The Inspector of Police,
Samarasampettai Police Station,
Trichy District