BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 22/11/2007
CORAM
The Honourable Mrs.Justice PRABHA SRIDEVAN
and
The Honourable Mr.Justice S.NAGAMUTHU
Crl.A.No. 299 of 2000
Karuppaswamy Thevar .. Appellant
vs
The State rep. By
Inspector of Police
Thatchanallur Police Station
Tirunelvelei .. Respondent
Criminal Appeal filed under Section 374 Crl.P.C. Against the judgment dated
15.11.1999 rendered in S.C.No.62 of 1999 by the learned Principal Sessions
Judge, Tirunelveli.
!For Appellant ... Mr.A.John Stephen for
Mr.R.Venkataraman
^For Respondent ... Mr.Senthoor Pandian,
Addl. Public Prosecutor
:JUDGMENT
(The Judgment of the court was delivered by S.NAGAMUTHU,J)
The appellant is the sole accused in S.C.No.62 of 1999 on the file
of learned Principal Sessions Judge, Tirunelveli. He stands convicted for an
offence under Section 302 I.P.C. and sentenced to undergo imprisonment for life
by judgment dated 15.11.1999.Challenging the same, the appellant has come
forward with this appeal.
2. The brief facts of the prosecution case is as follows:
i) The appellant is the father of the deceased. P.Ws. 1 and 2 are the
wife and mother respectively of the deceased. P.W.3 is a relative of the
deceased. P.Ws 1 and 2, the deceased and the appellant were living together
under a common roof at Mangala Kudiyiruppu village. There used to occur frequent
petty quarrels between the appellant and P.W.2. One week prior to the date of
occurrence, the appellant quarreled with P.W.2 and took Rs.2,500/- for his
expenses and left the house. On 02.05.1998 at about 11.00 p.m., the deceased and
P.W.1 were sitting in ‘Mutram'(Kw;wk; ) of the house chatting with each other
and P.W.2 was sitting inside the house. At that time, the appellant came and
developed quarrel with P.W.2. The deceased questioned the appellant as to why
should he indulge in such kind of quarrel even after having received Rs.2,500/-
from P.W.2. The appellant questioned the authority of the deceased to
intervene, when he was talking to his mother-P.W.2. In the said quarrel, the
appellant suddenly took out an Aruval and cut the deceased on his left small
finger, ring finger, right hand and neck. When P.W.1 raised alarm, the appellant
fled away from the scene. The occurrence was witnessed by P.W.3, who had gone to
the house of the deceased as a guest.
ii) P.W.1 took the injured to the Tirunelveli Medical College
Hospital. P.W.7 admitted him as in patient at 11.50 p.m. The deceased was
conscious and told that he was assaulted by a known person at about 11.00 p.m.
at his house with Aruval, while he was sleeping. He found the following injuries
on the body of the deceased:
“1. A cut injury involving left hand little and ring finger with bleeding;
2. A linear cut injury over right side frontal the neck 10 X 5 cm exposing blood
vessels muscles air leacked;
3. A incised cut injury 10cm X 3 cm X 1 cm over the right arm upper lateral
aspect;
4. 2 cut injury 3 cm X 2 cm over dorsum right hand over middle and ring finger.”
Ex.P.4 is the accident register.
iii) On receiving intimation from the hospital, P.W.9, a Head
Constable attached to outpost Police Station at Tirunelveli Medical College
Hospital went to the hospital and recorded the statement of P.W.1 at 1.30 a.m.
on 03.05.1998 and forwarded the same to Thachanallur Police Station. Mr.Babu
Raj, since deceased, who was the then Sub Inspector of Police at the said Police
Station, registered a case in Crime No.183 of 1998 under Section 307 I.P.C.
against the appellant. Ex.P.9 is the First Information Report. He forwarded
EXs.P.1 and P.9 to the jurisdictional Magistrate, who in turn received the same
at 6.00 a.m. on 03.05.1998.
iv) P.W.14, who was the Inspector of Police attached to Thachanallur
Police Station, took up the investigation, visited the place of occurrence at
5.30 a.m. and prepared Ex.P.2 Observation Mahazar and rough sketch Ex.P.18
in the presence of P.W.5 and another witness. Then he recovered blood stained
earth-M.O.3 and sample earth-M.O.4 in the presence of the same witnesses under
Mahazar Ex.P.3. He examined P.Ws 1 to 4, 5 and few other witnesses on the same
day. At about 10.00 am. on the same day, he arrested the accused in the
presence of P.W.6 and another witness at Karaiyiruppu bus stop. On such arrest,
the accused volunteered a confession, which was reduced into writing and the
admissible portion of the same is Ex.19. In the said statement, he disclosed
that he would identify the place where he had hidden the Aruval near
Thachanallur Uchi Mahali Amman Temple and produce the same. In pursuant to the
said disclosure statement, he took P.W.14 and the witnesses to a place near
Thachanallur Uchi Mahali Amman Temple and took out M.O.1 Aruval from a bush.
P.W.13 recovered the same in the presence of the same witnesses under Ex.P.20,
Mahazar. Thereafter, the accused was sent for judicial remand.
v) Continuing the investigation, P.W.14, examined few more
witnesses. On 26.06.1998 at about 5.30 p.m. the deceased died in the hospital
and on receiving Ex.P.3 intimation from the hospital, P.W.14 prepared an express
report adding Section 302 I.P.C under Ex.P.11 and forwarded the same to the
jurisdictional Magistrate. On the same day between 9 a.m. and 12 p.m. he
conducted inquest on the body of the deceased and prepared the inquest report
Ex.P.21. He forwarded the dead body to the doctor for conducting autopsy through
P.W.12. with a requisition.
vi) P.W.10, who was the then Tutor in Forensic Medicine, Tirunelveli
Medical College Hospital, on receiving the said requisition, conducted post
mortem at 2.15 p.m. on 26.06.1998. He found the following injuries:
“1. Healed cut injury (sutured and suture removed) on the front of right side of
neck, 8cmX 1 cm X muscle deep on dissection it was muscle deep.
2. Healed sutured cut injury (suture removed) seen on the back of upper 1/3 of
right arm 13 cm X 1 cm X muscle deep. On dissection it was muscle deep.
3. Vertical cut found (tracheostomy surgical procedure)3 cm X 1 cm X trachea
deep (wind pipe) seen on the lower of front of neck.
4. Healed wound 5 cm X 1 cm X muscle deep on the back of right hand at the base
of middle and ring finger. On dissection it is muscle deep.
5. Healed wound 5 cm X 1 cm X muscle deep seen on the back of left hand at the
base of little and ring finger. On dissection, it is muscle deep.”
He finally opined that the deceased would appear to have died of complications
of multiple injuries. Ex.P.8 is the post mortem certificate.
vii) P.W.14, thereafter, examined the doctor who conducted the post
mortem and other witnesses and forwarded the material objects to the Court. He
was transferred on 07.07.98. So, P.W.15, who succeeded him, took up the
investigation and examined P.Ws.10 and 12. At his request material objects were
sent for chemical analysis. Exs.P.16 and 17 are the Chemical Analysis reports.
viii) On completing investigation, he laid charge sheet against the
appellant under Section 302 I.P.C. on 30.07.1998.
3. The Learned Principal Sessions Judge Tirunelvei framed a single
charge against the appellant under Section 302 I.P.C. Since the appellant
pleaded not guilty, he was put on trial.
4. During trial, on the side of prosecution 15 witnesses were
examined and 22 documents were exhibited and four material objects were marked.
5. When the appellant was questioned under Section 313 Cr.P.C. in
respect of incriminating evidence available against him, he denied the same. He
has neither examined any witness nor marked any document on his side.
6. Having considered the materials available on record, learned
Principal Sessions Judge has found the appellant guilty and has imposed
punishment as aforesaid. The appellant challenges the same in this appeal.
7. The learned counsel for the appellant would submit that P.Ws 1 to
3 would not have witnessed the occurrence, since it was very late night. He
would further submit that the deceased had told P.W.7, Dr.Kandasamy that on
02.05.1998 at about 11.00 p.m. he was attacked by a known person at his home
when he was sleeping. The learned counsel would submit that the said statement
of the deceased would indicate that while all the inmates were fast asleep, the
deceased would have been attacked and therefore, the assailants would not have
been known to anybody. The learned counsel would further submit that since P.Ws
1 and 2 were enraged over the frequent quarrels of the appellant, they have
falsely implicated the appellant in this case.
8. The learned counsel would further submit that there is delay in
forwarding the complaint to the Court, which creates doubt in the case of the
prosecution. The learned counsel would further submit that the doctor who
treated the injured between 02.05.1998 to 26.06.1998 has not been examined and
no medical record has been produced and thus the cause of the death could not
be ascertained with certainty. The learned counsel would further submit that the
opinion of P.W.10, Dr.Selvlaraj, that the deceased died due to complications,
cannot be given much weightage. Thus according to the learned counsel for the
appellant, the cause of death has not been duly proved by the prosecution in
this case.
9. Per contra, the learned Additional Public Prosecutor would submit
that in this case, there is no delay in preferring the complaint by P.W.1 and
that there are no reasons for P.Ws 1 to 3 to falsely implicate the appellant in
this case. The reason stated by the appellant that since he was quarrelsome,
P.Ws 1 and 2 have chosen to falsely implicate him in this case, is too big a
thing to swallow.
10. The learned Additional Public Prosecutor would further submit
that the argument of the learned counsel for the appellant that normally, the
inmates P.Ws 1 and 2 would have been sleeping since it was late night, cannot
be given weightage, since P.Ws 1 to 3 have specifically stated that they were
not sleeping as they were chatting with each other. He would further submit
that though the doctor, who treated the injured in the hospital has not been
examined, when P.W.10 has given an opinion that the death was attributable to
the injuries, it is to be held that the prosecution has proved that the injuries
caused on the deceased alone have resulted in death.
11. We have considered the rival contentions and also perused the
records carefully.
12. Admittedly, P.Ws 1 to 2, the deceased and the accused were
living together under a common roof. The alleged time of occurrence is 11.00
p.m. It is quite natural that P.Ws 1 and 3 could have been at their house at
that time. It is not even suggested by the defence that P.Ws 1 to 3 were not
present at the time of occurrence. The deceased had told P.W.7, when he was
taken to the hospital that he was attacked by a known person at his house at
11.00 p.m. when he was sleeping. May be true that the deceased was sleeping when
the first attack was mounted on him. But, it is not necessary to infer that the
other inmates like P.Ws 1 to 3 would have also been sleeping at the relevant
time. Thus the presence of P.Ws 1 to 3 and that they were not sleeping at the
time of alleged occurrence has been established by the prosecution, through the
evidences of P.Ws 1 to 3 and other circumstances.
13. P.Ws 1 to 3 have categorically stated about the overt acts of
the appellant. The evidence of P.W.7 would corroborate the evidence of P.Ws 1
to 3. There are no reasons to reject the evidence of P.Ws 1 to 3. The argument
of the learned counsel for the appellant that since the appellant was indulging
in frequent quarrels with P.W.2-mother, P.Ws 1 and 2 were enraged over the
same, and so they have chosen to falsely implicate the appellant in this case,
can hardly be accepted.
14. As pointed out earlier, in the statement made to P.W.7, the
deceased himself has stated that he was assaulted by a known person at his house
at 11.00 p.m. This statement is a dying declaration falling under Section 32 of
the Evidence Act, requiring much weightage. This dying declaration also
corroborates the evidence of P.Ws 1 to 3. Thus, in our considered opinion, the
prosecution has proved that the injuries on the deceased were caused only by
this appellant.
15. In respect of the cause of death, the prosecution relies on the
evidence of P.W.10. Admittedly, the deceased had undergone treatment as
inpatient in the hospital for about 53 days. The prosecution has not chosen to
either examine the doctors who treated the deceased in the hospital during the
said period or to produce medical records. In the absence of the same, we are
not able to know the condition of the deceased in the hospital during the said
period. Though it is a flaw in the case of prosecution, on that score alone, the
entire case of the prosecution cannot be thrown out.
16. P.W.10, has stated that he found as many as 5 external injuries
on the body of the deceased. Injury No.3 was a surgical one made for
tracheostomy. Therefore, Injury Nos.1, 2, 4 and 5 alone were caused by the
appellant. He also stated that the said four injuries and also the tracheostomy
wound were found healed. But bed sore wound was found on the upper part of back
of right thigh. The doctor has not stated that the death was directly
attributable to the injuries. He has only opined that the death was due to the
complications of the multiple injuries. Insofar as the condition of lungs is
concerned, P.W.10 has mentioned as follows:
” Both lungs found adherent to the chest wall. Apex of right lung; cut section-
shows greenish white material surrounded by fibrous tissues. Base of the left
and right lung found consolidated. Cut section pus material oozing out.”
17. The doctor has opined that the death is due to complications due
to the injuries. He has not elaborated as to what are the complications, which
resulted in the death of the deceased. For this reason only, we feel that the
treatment records and the evidences of doctors, who treated the injured in the
hospital, would be of more help to know as to what was the condition of the
injured in the hospital during treatment and what was the complication and
whether the same was due to the injuries. As seen from the post mortem
Certificate and also from the evidence of P.W.10, we could infer that all the
injuries including the surgical one were found healed and there was no
infection anywhere near the said injuries. But there was infection only in the
lungs. In our considered view, in the absence of any connection between these
injuries and the infection to lungs, it cannot be concluded with certainty that
the complications stated by P.W.10 are only due to the injuries. A careful
scrutiny of the evidence of P.W.10 would also go to show that it is not his
opinion that the said injuries are sufficient in the ordinary course of nature
to cause death. In view of the said position, we are not convinced that the
external injuries i.e injury Nos.1,2 and 4 found on the deceased, would be
sufficient to cause death in the ordinary course of nature. However, there can
be no second opinion that the injury No.1 found on the neck would be likely to
cause death.
18. Now, we have to analyse whether the offence would fall under
Section 302 I.P.C. To bring the act of the appellant within the fourth limb of
Section 300 I.P.C., the prosecution is obliged to prove that the appellant had
knowledge that the bodily injury which he has caused is likely to cause death.
In the instant case, the appellant has caused an injury on the neck, that too,
with lethal weapon. It is common knowledge that any injury caused on the neck
with lethal weapon is likely to cause death. To that extent knowledge can be
certainly attributed to the appellant. If that be so, the act of the appellant
would fall within the fourth limb of Section 300I.P.C.
20. As it is clearly spoke to by P.Ws 1 to 3, the act of the
appellant is not a premeditated one. After all, P.Ws 1 and 2, the deceased and
the appellant were all along living under a common roof. Except the frequent
quarrels between P.W.2 and the appellant, there is no other evidence to suggest
that they were on inimical terms. There is no evidence that the deceased and the
appellant ever had any quarrel on any previous occasion. Even at the time of
occurrence, the appellant did not develop any quarrel with the deceased, but
when the quarrel was going on between him and P.W.2, the deceased intervened,
which culminated in the assault made by the appellant by lethal weapon. It is
to be noted that the appellant did not come there with lethal weapon. All these
circumstances would go to show that the occurrence was not pre-medidated and it
was only due to a petty and sudden quarrel and a scuffle, in which the
appellant had attacked the deceased. All these circumstances satisfy the
requirements of exception 4 to Section 300 I.P.C. Thus the act of the appellant
would only fall within Exception 4 to Section 300 I.P.C., thereby bringing the
offence punishable under Section 304 (ii)I.P.C.
21. The learned counsel for the appellant would submit that the
appellant is an old man facing the evening of his life and therefore, in the
matter of punishment, leniency may be shown to him.
22. We have considered the said plea and also having regard to the
facts and circumstances of the case, We deem it appropriate to impose a
punishment of Rigorous Imprisonment for five years.
23. In the result, the appeal is partly allowed. The conviction and
sentence imposed on the appellant under Section 302 I.P.C by the trial Court is
set aside and instead, the appellant is convicted under Section 304 (ii) I.P.C.
and sentenced to undergo R.I. for five years. The sentence already undergone by
him shall be given set off. The lower Court is directed to issue necessary
warrant to secure the custody of the accused and to commit him to prison to
undergo the remaining period of sentence, if any. In all the other aspects, the
appeal is dismissed.
pal
To
1.The Principal Sessions Judge,
Tirunelveli.
2.Inspector of Police
Thatchanallur Police Station
Tirunelvelei
3. The Public Prosecutor,
Madurai Bench of
Madras High Court,Madurai.