BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:14/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL APPEAL (MD) NO.88 OF 2007 Murugesan .. Appellant Vs. State rep. by Inspector of Police, West Police Station, Kumbakonam, Thanjavur District. (Crime No.275/2002) .. Respondent This criminal appeal is preferred under Section 374 Cr.P.C. against the judgment of the learned Principal Sessions Judge, Thanjavur made in S.C.No.214 of 2003, dated 20.02.2004. !For Appellant ... Mr.R.Murugappan ^For Respondent ... Mr.P.N.Pandithurai, APP - - - - :JUDGMENT
(The judgment of the court was delivered by M.CHOCKALINGAM, J.)
This appeal has arisen from the judgment of the learned Principal Sessions
Judge, Thanjavur made in S.C.No.214 of 2003, whereby the sole accused/appellant
stood charged under Sections 302 and 506(ii) IPC. On trial, he was found guilty
as per the charges and awarded with life imprisonment and to pay a fine of
Rs.5000/-, in default to undergo 4 years R.I. under Section 302 IPC and 7 years
R.I. under Section 506(ii) IPC. Hence, this appeal has arisen at the instance of
the appellant.
2.The short facts necessary for the disposal of this appeal could be
stated as follows:
a)P.W.1 is the wife and P.W.2 is the friend of the deceased. P.Ws.3 and 4
belonged to the village of the deceased. On the date of occurrence, namely on
24.06.2002 at about 8.15 p.m., the deceased accompanied by this wife, P.W.1 and
others were waiting in the Kumbakonam bus stand to go to their native place. The
mini bus bearing registration No.TN 49 V 5288 was in the bus stand. P.W.8 was
the Driver and P.W.10 was the Conductor of the said mini bus. The deceased got
into the said bus along with his wife. When he found the accused sitting on the
seat meant for women, he told him “why you are sitting in the seat allotted to
women”. There was a wordy altercation and there was also exchange of filthy
language. The accused took the knife from his waist and stabbed the deceased on
his abdomen. This was witnessed by P.Ws.1 to 4. Immediately, the accused fled
away from the place of occurrence.
b)P.Ws.1 and 2 took the severely injured to the Government Hospital,
Kumbakonam, where P.W.15, the Doctor attached to the Government Hospital,
Kumbakonam gave first aid to him and he has issued Ex.P.16, the Accident
Register. For further treatment, he was taken to the Thanjavur Medical College
Hospital, where P.W.14, the Doctor has admitted him and gave treatment to him.
He has issued Ex.P.15, the Accident Register.
c)On intimation given from the hospital, P.W.11, the Sub Inspector of
Police went over to the hospital, found the deceased unconscious and recorded
the statement of P.W.1, which was marked as Ex.P.1. Then, he came to the police
station and on the strength of Ex.P.1, he registered a case in Crime No.275 of
2002 under Sections 324, 294(b) and 506(2) IPC. Ex.P.10, the F.I.R. was
despatched to the court. Then, he proceeded to the scene of occurrence and made
an inspection in the presence of the witnesses. He prepared Ex.P.2, the
observation mahazar and Ex.P.11, the rough sketch. He recorded the statement of
the witnesses.
d)On 28.6.2002, the accused was arrested and was sent for judicial remand.
The police received a message from the Thanjavur Medical College Hospital that
the severely injured died on 29.06.2002 at 9.30 p.m. On receipt of the
intimation, the case was altered to Sections 294(b), 506(2) and 302 IPC.
Ex.P.12, the amended F.I.R. was despatched to the court.
e)The investigation was further taken up by P.W.17, the Inspector of
Police. He proceeded to the Thanjavur Medical College Hospital and conducted
inquest on the dead body of the deceased in the presence of the witnesses and
panchayatdars and prepared Ex.P.17, the inquest report. The dead body of the
deceased was sent for the purpose of autopsy along with the requisition.
f)P.W.6, the Doctor attached to the Thanjavur Medical College Hospital, on
receipt of the requisition, has conducted autopsy on the dead body of the
deceased. She has noted the external and internal injuries in Ex.P.3, the post-
mortem certificate, wherein she has also opined that the deceased would appear
to have died out of the injuries sustained.
g)The application for taking the accused into the police custody was made
by the Investigating Officer. Accordingly, the police custody was ordered. The
accused voluntarily gave confessional statement, which was recorded in the
presence of the witnesses. The admissible part of the same was marked as Ex.P.4.
Pursuant to the confessional statement, the accused produced M.O.2, knife, which
was recovered in the presence of the witnesses under a cover of mahazar. The
accused was again sent for judicial remand. All the material objects recovered
from the deceased and from the accused were sent for chemical analysis by the
Forensic Science Department. Ex.P.21, the Chemical Analyst’s report, Ex.P.22 and
Ex.P.23, the Serologist’s reports were received. On completion of the
investigation, the Investigating Officer has filed the final report before the
court.
3.The case was committed to the court of Sessions and necessary charges
were framed. In order to substantiate the charges levelled against the accused,
the prosecution examined 17 witnesses and also relied on 23 exhibits and 2 M.Os.
On completion of the evidence on the side of the prosecution, the accused was
questioned under Section 313 Cr.P.C. as to the incriminating circumstances found
in the evidence of prosecution witnesses, which he flatly denied as false. No
defence witness was examined. After considering the submissions made and looking
into the materials available, the trial court took the view that the prosecution
has proved the case beyond reasonable doubt and hence, this appeal has arisen
before this court.
4.Advancing arguments on behalf of the appellant, the learned counsel has
made the following submissions:
a)The occurrence, according to the prosecution, has taken place on
24.6.2002 at about 8.15 p.m. in a mini bus parked in the Central Bus stand,
Kumbakonam, in which P.W.8 was the Driver and P.W.10 was the Conductor. Four
eyewitnesses have been examined by the prosecution, out of them P.W.1 was the
wife and P.W.2 was the friend of the deceased. P.Ws.3 and 4 belonged to the
village of the deceased. Thus, they are interested witnesses. The first strong
circumstance against the case of prosecution was that all the Doctors, who
examined medically and treated the deceased from 24.06.2002 to 29.06.2002, have
categorically spoken to the fact that he was conscious, but his statement was
never recorded by any police officer. On the contrary, the statement of P.W.1
was recorded and they have proceeded with the investigation. On the death of the
deceased, the case was altered to Section 302 IPC and hence, the non examination
of the deceased would cast a doubt on the prosecution case. If really he was
under serious condition, they would have informed to the Judicial Magistrate
concerned and recorded the dying declaration, but not done so.
b)Secondly, when the statements of P.Ws.1,2 and others were recorded under
Section 161 Cr.P.C. and when they were examined before the court, they have
categorically mentioned that the accused was already known to them. But, in the
accident registers issued by the Doctors pertaining to the deceased, it is found
that he was attacked by a unknown person. Thus, it casts a doubt whether those
witnesses could have seen the occurrence at all.
c)In the instant case, originally, the case was registered under Sections
324, 294(b) and 506(ii) IPC and Section 161 Cr.P.C. statements recorded from the
witnesses reached the court only in the month of October, 2002. The additional
statements recorded from the witnesses under Section 161 Cr.P.C. after the case
was altered to Section 302 IPC, reached the court in the month of July, 2002.
Thus, this would cast a doubt as to whether those statements have come into
existence as put forth by the prosecution. Hence, the accused is entitled for
acquittal, but not done so by the lower court.
d)Even assuming that the accused has actually stabbed the deceased and
caused injury, it was due to a wordy quarrel between the accused and the
deceased in the mini bus. Secondly, the occurrence has taken place on 24.6.2002.
He was taken to the hospital and he died on 29.06.2002, i.e. after a period of 5
days. Thus, this would indicate that when he stabbed the deceased, he has no
intention to cause death or to cause such injuries that will cause death. Hence,
this legal aspect of the matter has got to be considered by the court.
5.The court heard the learned counsel for the State on the above
contentions.
6.The court has paid its anxious consideration on the submissions made. It
is not the fact in controversy that one Kamaraj, the husband of P.W.1, following
the incident in the parked mini bus at Kumbakonam Central bus stand at about
8.15 p.m. on 24.6.2002, was taken to the Government Hospital, Kumbakonam and
thereafter, he was taken to the Thanjavur Medical College Hospital and he died
on 29.06.2002, despite treatment given to him. Following the inquest made by the
Investigating Officer, the dead body was subjected to post-mortem by P.W.6, the
Doctor, who has issued Ex.P.3, the post-mortem certificate, wherein she has
opined that the deceased would appear to have died out of the injuries
sustained. Thus, there was ample evidence produced by the prosecution that he
died out of homicidal violence. The fact that the deceased died out of homicidal
violence was never questioned by the appellant/accused before the court below.
Hence, without any impediment whatsoever, it could be recorded so factually.
7.In order to substantiate the charged levelled against the
appellant/accused, the prosecution marched four witnesses, as eyewitnesses. It
is true, P.W.1 was the wife, P.W.2 was the friend of the deceased and P.Ws.3 and
4 belonged to the village of the deceased. But, that cannot be a reason to
reject their testimony, since the court is unable to see any strong circumstance
or reason to reject the same. Further, their evidence is found to be in one
voice and they have clearly narrated as to how the incident has taken place and
as to how the accused happened to attack the deceased. Their evidence is fully
corroborated by the evidence of P.W.15, the Doctor attached to the Government
Hospital, Kumbakonam, who has examined the deceased medically and has issued
Ex.P.16, the Accident Register. The ocular testimony is also fully corroborated
by the evidence of P.W.14, the Doctor attached to the Thanjavur Medical College
Hospital, who has also issued Ex.P.15, the Accident Register. This would go to
show that the testimony given by those witnesses stood fully corroborated by the
medical evidence.
8.Yet another circumstance is the recovery of the weapon of crime pursuant
to the confessional statement given by the accused while he was in police
custody and witnesses have been examined to that effect. All put together would
go to show that it was the accused, who stabbed the deceased and caused severe
injury and as a direct consequence, he died.
9.The contention put forth by the learned counsel for the appellant is
that in the accident registers issued by the respective Doctors, it is stated
that one unknown person has attacked the deceased. But, in the statements
recorded under Section 161 Cr.P.C and also during evidence before the court, the
witnesses have stated that he was the known person. At this juncture, it is
pertinent to point out that in Ex.P.1, P.W.1 has categorically mentioned the
identity of the accused. It is not the case of the defence throughout the trial
that he was not available in the bus either, or he did not commit the offence at
all. Hence, the said contention cannot be accepted. The evidence of the
witnesses would point to the complicity of the offender.
10.The other contention made by the learned counsel for the appellant is
that originally, the statements recorded by the Investigating Officer reached
the court in the month of October, 2002, but the further statements recorded by
the Investigating Officer reached the court in the month of July, 2002. The
court is of the considered opinion that though this comment is found to be true,
it will not take the truth of the prosecution case. Originally, the case was
registered under Section 324 IPC and other provisions and subsequently, it was
altered to Section 302 IPC and other provisions. After the case was altered to
Section 302 IPC, additional statements of the witnesses were recorded and they
were sent to the court within a short time. Thus, this would not cast a doubt on
the prosecution case. Hence, the contention put forth by the learned counsel for
the appellant in that regard has got to be rejected.
11.So far as the second line of argument is concerned, the court is able
to see sufficient force in the contention put forth by the learned counsel for
the appellant. As per the evidence of P.Ws.1 to 4, there was a wordy altercation
between the deceased and the accused, since the accused was sitting in the seat,
which was allotted to women. Hence, due to provocation, the accused has acted
so. Further, there was single stab given. The deceased was taken to the hospital
and he died after 5 days. All would be indicative of the fact that he had no
intention to cause death, but as a direct consequence of the attack, the death
was ensued. Under these circumstances, the act of the accused cannot be termed
as murder, but it would be one culpable homicide not amounting to murder. Hence,
the act of the accused would attract the penal provisions of Section 304(II) IPC
and awarding punishment of 5 years R.I. would meet the ends of justice.
Likewise, there is evidence to show that the accused threatened the witnesses
and therefore, his conviction under Section 506(2) IPC has got to be confirmed.
But, at the same time, the sentence of 7 years R.I. imposed on him for the said
offence, in the opinion of the court, has got to be reduced to one year R.I.
12.Accordingly, the conviction and sentence imposed on the appellant under
Section 302 IPC are modified to one under Section 304(II) and he is directed to
suffer 5 years R.I. and while confirming the conviction imposed under Section
506(2) IPC, the sentence alone is reduced to one year R.I. Both the sentences
are directed to run concurrently. The sentence already undergone by the
appellant is ordered to be given set off. The fine amount imposed under Section
302 IPC shall be treated as fine amount imposed under Section 304(II) IPC.
13.With the above modification in conviction and sentence, this criminal
appeal is dismissed.
vvk
To
1.The Inspector of Police,
West Police Station,
Kumbakonam,
Thanjavur District.
2.The Principal Sessions Judge,
Thanjavur.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.