JUDGMENT
M. Karpagavinayagam, J.
1. Narayanasamy, the appellant herein, was convicted for the offences punishable under Sections 447 and 302 IPC. by the learned Additional District Sessions Judge (Fast Track Court No. 2), Salem, in S.C.No. 74 of 2001, dated 15.3.2002 and sentenced to undergo 3 months rigorous imprisonment under Section 447 IPC and life imprisonment under Section 302 IPC. Challenging the said conviction and sentence, this appeal has been filed.
2. The short facts leading to the conviction are as follows:
(a) The deceased Govindaraj is the elder brother of P.W.1 Sivamurthy. P.W.3 Vasuki is their elder sister. P.W.2 Selvam is the father of P.W.1, P.W.3 and the deceased. The appellant Narayanasamy is the elder brother of P.W.2 Selvam.
(b) After the death of the grand father of PW2 and the appellant/accused, the properties were divided amongst themselves and various portions have been allotted to them. In respect of a dispute in the pathway, there was a panchayat held and in pursuance of the decision taken in the Panchayat, there was a misunderstanding between the family of the deceased and the family of PW2.
(c) On 19.7.2000 at about 5.30 p.m., the appellant Narayanasamy trespassed into the disputed land belonging to PW2 and started cutting the maize stalks. P.W.1 and deceased Govindaraj questioned the accused as to why he was cutting maize stalks. A quarrel ensued between the appellant and the deceased and in that quarrel, the appellant/accused told how he dare enough to question him. The appellant saying so, dropped MO5 sickle with which he was cutting the maize stalks and took out MO1 suri-knife from his waist and stabbed the deceased on his abdomen. When the deceased tried to ward off the said attack, he sustained injuries on his left palm and left upper arm. When PW1 tried to prevent the said attack, the appellant came forward to attack him also and then PW1 moved away.
(d) PW3 Vasuki, who came by that side, saw the occurrence. P.W.4 and others also came to the scene of occurrence and took the victim to the hospital. The Doctor attached to the Government Hospital, Salem after admitting the deceased in the hospital, sent intimation to the learned Magistrate and the police.
(e) At about 7.25 P.M., P.W.7, the Judicial Magistrate I, Salem, came to the hospital and recorded the Dying Declaration, Ex.P.8, given by the deceased. The Doctor also issued a certificate with regard to the fitness of the deceased at the time of giving the dying declaration.
(f) At about 7.30 p.m., P.W.11, Sub-Inspector of Police, Kaaripatti Police Station, came to the hospital and recorded the statement of the injured, on the basis of which, a case was registered in Crime No. 800/2000 for the offence under Section 307 IPC. He also sent an intimation to the Inspector of Police, P.W.12.
(g) P.W.12, the Inspector of Police, took up investigation in the case. He came to the hospital and recorded statements from the deceased, P.W.2 and P.W.1. He also seized blood stained Shirt M.O.2,
Dhoti MO3 and Towel MO4 under Ex.P.1 Seizure Mahazar. Then he took steps to arrest the accused.
(h) On 22.7.2000, P.W.12 received the death intimation (Ex.P.18) from the hospital. Then P.W.12 altered the crime from one under Section 307 IPC to 302 IPC and prepared Ex.P.19, the altered first information report. Then PW12 proceeded to the hospital, conducted inquest over the dead body of Govindaraj and prepared Inquest Report Ex.P.20 on the same day. P.W.12 also gave a requisition Ex.P.9 to the doctor for conducting Post Mortem. On receipt of the requisition, P.W.9, the doctor attached to Government Mohan Kumaramangalam Medical College, Salem conducted autopsy on the dead body and issued Ex.P.10, the postmortem certificate opining that the deceased died due to the stab injury to the abdomen. The doctor found the following injuries:
External injuries:
1. An oblique gaping stab injury present on the umbilical region of abdomen 1.5cm x 0.5 cm x cavity deep.
2. A vertical surgical wound present in front of middle of abdomen 26cm x 1.5 cm x cavity deep (sutured)
3. A surgical drainage wound present on Right lumbon region of abdomen 1.5 cm x 0.5 c.m. x cavity deep.
4. An oblique gaping incised wound on front of middle 1/3rd of left arm 2.5 cm x 0.5 cm x 0.5 cm
5. A superficial incised wound on lower 1/3rd of outer aspect of left forearm 1 x 0.5 x 0.5 cm
6. An incised wound on inner aspect of left hand 2 x 0.5 x 0.5 cm.
(i) On 26.7.2000, P.W.12 received information that the accused has surrendered before the Judicial Magistrate III, Salem. Then, P.W.12, sought police custody of the accused. P.W.13 obtained confession from the accused, in pursuance of which, M.O.1 knife was obtained. In the meantime all the material objects were sent for chemical examination. After completion of investigation, charge sheet has been filed.
(j) On the side of the prosecution, Pws.1 to 12 have been examined, Ex.P1 to 21 were filed and M.Os 1 to 5 were marked.
(k) The plea of the accused under Section 313 of the Cr.P.C. was one of total denial. The trial Court, accepting the prosecution version, convicted the appellant herein for the offences punishable under Sections 447 and 302 IPC and sentenced to undergo 3 months rigorous imprisonment under Section 447 IPC and life imprisonment under Section 302 IPC. The said conviction and sentence have been challenged in this appeal.
3. Mr. Shanmugha Sundaram, learned Senior counsel appearing for the appellant, taking us through the entire evidence, would contend that the evidence of the eye witnesses and the dying declaration are in consistent, as they would suffer from various infirmities and as such, the accused is entitled to be acquitted. However, ultimately the learned Senior Counsel, confining his arguments to the nature of the offence, would contend that even assuming that the entire prosecution is true, since the accused stabbed on the stomach of the deceased, which is a non-vital part and that too, in a wordy quarrel and he had caused only single stab, for which, he was admitted in the hospital and discharged on 22.7.2000 viz., after three days and as such, he cannot be convicted for the offence under Section 302 IPC. If at all he can only be convicted for a lesser offence under Section 304(i) or 304(ii) IPC.
4. We have heard the Additional Public Prosecutor on the above aspects.
5. The prosecution sought to establish its evidence through the evidence of P.Ws.1 and 3, the eye witnesses P.Ws 2 and 4 who speak about the oral dying declaration and the dying declaration Ex.P8 recorded by P.W.7 and also the statement recorded from the deceased and P.W.2 by P.W.11.
6. On going through the evidence, it is clear that the deceased sustained injury only at the hands of the accused.
7. According to the prosecution, there was a dispute with regard to the pathway and in view of the decision taken by the panchayatdars , there was some misunderstanding between the family of the accused and the family of the deceased . On the date of occurrence, the accused trespassed into the land of P.W.1 and started cutting the maize stalks, which was objected to by PW1 and the deceased. While such a quarrel was going on, the accused suddenly took up the knife from his waist and stabbed on the abdomen of the deceased. The above said fact has been spoken to by PW1, the brother of the deceased and PW3, the sister of the deceased. The deceased had given a complaint at 9 p.m.. Even before 9 p.m., the deceased has given dying declaration before the Judicial Magistrate, P.W.7 giving the details of the occurrence.
8. So the earliest document which came into existence in this case is the dying declaration Ex.P8, which was recorded by PW7 at 7.55 p.m. on 19.7.2000. The dying declaration Ex.P.8 given before the Judicial Magistrate, is in our view, is quite consistent with the statement (Ex.P2) of the deceased recorded by PW11. and also the evidence of PWs1 and 3 , the eye witnesses.
9. That apart, we have got the evidence of Pws2 and 4, who speak about the oral dying declaration made by the deceased to those witnesses, when he was taken to the hospital.
10. Therefore, there is no difficulty in holding that the deceased sustained injuries on the stomach only at the hands of the accused by MO.1 knife. For the act of cutting the deceased, it is contended by the learned Senior counsel that the single stab was caused on the abdomen, a non vital part which would not attract the offence under Section 302 IPC and as such the accused is liable to be convicted for a lesser offence.
11. There is no dispute about the fact that the occurrence took place in a sudden quarrel. On seeing the accused trespassing into the land of P.W.1, cutting the maize stalks and causing damage to the harvesting crops, PW1 got angry and accordingly he and the deceased objected to the act of the deceased. The accused in this case is none else than the senior paternal uncle of the deceased. When the accused who was a nephew of the deceased objecting his act, naturally he began to abuse PW1 which resulted in quarrel in between them and when a young man began to challenge the accused, who is an elderly man aged about 60 years, he took out the knife from his waist and caused single stab on the stomach of the deceased who was taken to the hospital immediately and treatment was given by the doctors concerned . But ultimately, despite the treatment, he died after three days later. It is true that P.W.9, the doctor who said that the injuries on the stomach of the deceased are fatal. But the fact remains that the accused caused only single injury on the stomach, which cannot be considered to be a vital part , and though the injury has resulted in the death, it is not an instantaneous one.
12. It is pointed out by the learned Senior counsel for the appellant that the doctor who treated and operated upon the deceased has not been examined and no particulars have been placed before the Court about the nature of treatment given to the deceased.
13. As indicated above, the deceased was attacked on 19.7.2000, but he died only on 22.7.2000, after three days. Admittedly, the document regarding the nature of treatment given and the case sheets have not been produced before this Court.
14. In view of the above, we are of the view that the conviction imposed upon the appellant/accused under Section 302 IPC may not be proper and the same is liable to be set aside and it is accordingly set aside and instead, he is liable to be convicted under Section 304(i) IPC, since in our view, the accused had intention to cause injury on the deceased as is likely to cause death .
15. In the result, the appeal is partly allowed and the appellant is convicted for the offence under Section 304(i) IPC for which he is sentenced to undergo 7 years rigorous imprisonment. It is reported that the appellant is on bail, the trial court is directed to take steps to secure his custody to undergo the remaining period of sentence.