IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26/07/2005
CORAM
THE HON'BLE MR.JUSTICE N.DHINAKAR
AND
THE HON'BLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.642 of 1999
Panneer Selvam .. Appellant
-Vs-
State represented by
The Inspector of Police
Malayampalayam Police Station
Erode District
(Crime No.313 of 1997) .. Respondent
Criminal appeal filed under Sec.374 of the Code of Criminal Procedure
against the judgment of the II Additional Sessions Judge, Erode, in S.C.No.62
of 1999 dated 28.7.1997.
!For Appellant : Mr.B.Sriramulu
Senior Counsel
for M/s.N.A.Ravindran
and K.Annadurai
^For Respondent : Mr.S.Jayakumar
Additional Public Prosecutor
:JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
The sole accused in a case of murder on being found guilty as per the
charge by the II Additional Sessions Court, Erode, in S.C.No.62 of 1999 and
awarded life imprisonment, has brought forth this appeal.
2. The short facts necessary for the disposal of this appeal are:
(a) P.W.1 is the wife of the deceased Natarajan. P.W.2 is the cousin
brother of the deceased, living in a distance of 10 feet from the house of the
deceased. The deceased was in need of Rs.5,000/-, which he asked from the
accused. The accused in turn borrowed the said sum from P.W.6, who is the
Proprietor of a Finance Company in Erode, on 26.6.1996 and gave the amount to
the deceased. Many a demand was made by the accused for the return of the
said sum; but, the deceased did not repay so. On the date of occurrence
namely 26.12.1997, at about 12.00 Noon, the accused came to the house of the
deceased, where P.Ws.1 and 2 were present. He made the demand of Rs.5,000/-;
but, the deceased replied “no money”. The accused told him that he was in
dire need of money, and hence, the deceased could pay at least Rs.2,000/-.
Again the deceased gave the same answer. Then, pursuant to a quarrel between
the two, the accused pulled out a knife from his waist and stabbed Natarajan,
the deceased in the case, on the right side of his stomach. P.Ws.1 and 2
witnessed the occurrence. The accused fled away from the place of occurrence.
(b) The injured was taken to the Government Hospital, Erode, who was
attended by P.W.12 the Doctor, and in respect of the injuries caused, the
prosecution marked the Accident Register copy as Ex.P14. An intimation was
received by P.W.15 the Head Constable, attached to the Out-Post Police
Station, who in turn informed to Malayampalayam Police Station. On receipt of
the said message, P.W.18 the Head Constable, attached to Malayampalayam Police
Station, went to the Government Hospital, Erode, and recorded the statement
given by P.W.1, which is marked as Ex.P1, on the strength of which a case came
to be registered in Crime No.313 of 1997 under Sec.326 of I.P.C. The printed
First Information Report Ex.P23 was sent to the Court. In the meanwhile, the
accused went to P.W.10 the Doctor, who was having a private clinic, and he had
treatment for the injuries caused on his palm.
(c) On receipt of the copy of the F.I.R., P.W.18 the Head Constable,
took up the case for investigation and went to the scene of occurrence. In
the presence of witnesses, he made an inspection and prepared an observation
mahazar Ex.P3 and a rough sketch Ex.P24. He also recovered from the place of
occurrence bloodstained earth M.O.5, and sample earth M.O.6, under a cover of
mahazar Ex.P4. Despite treatment, Natarajan died in the hospital on the same
day at 8.30 P.M. An intimation Ex.P15, was sent to the concerned Police
Station. P.W.16 a Grade-I Constable, attached to Out-Post Police Station,
received the intimation and forwarded the same to Malayampalayam Police
Station. On receipt of the death intimation, P.W.18 converted the case into
one under Sec.302 of I.P.C. Express report Ex.P25, was sent to the Court.
(d) On receipt of the copy of the F.I.R., P.W.19 the Inspector of
Police, took up the case for investigation. He proceeded to the hospital,
conducted inquest on the dead body of Natarajan in the presence of
panchayatdars and witnesses and prepared Ex.P26 the inquest report. He sent a
requisition Ex.P11 to the hospital along with the dead body for conduct of
postmortem.
(e) P.W.11 the Civil Assistant Surgeon, attached to the Government
Head Quarters Hospital, Erode, on receipt of the requisition, conducted
autopsy on the dead body of Natarajan and found the following injuries.
“1) A right paramedian incision with sutures about 8” from the epigastric
region to umbilicus seen.
2) A drainage hole about 1″ in length with drainage tube in the right sub
costal margin about 6″ from the incision.”
The Doctor has issued Ex.P12 the postmortem certificate, with his opinion that
the deceased would appear to have died of shock and haemorrhage due to
visceral injury.
(f) Following the same, the place of occurrence was photographed
through P.W.9 a Photographer, and the photographs and negatives were marked as
Ex.P9 series and Ex.P10 series respectively. During investigation, P.W.19 the
Investigating Officer, arrested the accused on 27.12 .1997, at Solangapalayam
Bus stop, when he gave a confessional statement. The admissible part is
marked as Ex.P5. Pursuant to the confessional statement, both the knife
M.O.1, and the T.V.S.50 M.O.9, in which the accused travelled, produced by
him, were recovered under a cover of mahazar Ex.P7. On completion of the
investigation, the final report was filed before the Court.
3. The case was committed to the Court of Session, and the necessary
charge was framed.
4. In order to substantiate the charge levelled against the
appellant/accused, the prosecution marched 20 witnesses and relied on 27
exhibits and 9 material objects. On completion of the evidence on the side of
the prosecution, the accused was questioned under Sec.313 of the Code of
Criminal Procedure as to the incriminating circumstances found in the evidence
of the prosecution witnesses, which he flatly denied as false. No defence
witnesses were examined. The trial Court on hearing the arguments advanced
and on scrutiny of the materials, found the appellant/accused guilty as per
the charge and awarded the life imprisonment which is the subject matter of
challenge before this Court.
5. The learned Senior Counsel appearing for the appellant inter alia
made the following prime submissions:
(i) In the instant case, the prosecution relied on the evidence of
P.Ws.1 and 2, who are highly interested. P.W.1 is the wife of the deceased,
while P.W.2 is the cousin brother of the deceased, and thus, they have given
the false versions against the accused. It is pertinent to note that the
deceased owed money to the appellant/accused.
(ii) The medical evidence is not in corroboration with the ocular
testimony.
6. The learned Senior Counsel would further add that even assuming
that the case put forth by the prosecution that it was the accused who stabbed
the deceased, is proved, then the fact remains that it was a case where a
quarrel ensued between the parties for a period of 15 minutes which is quite
evident from the evidence of P.Ws.1 and 2, and it was also a single stab, and
under the circumstances, the act of the accused could not be termed as murder,
and hence, he is entitled to the benefit of exception 4 to Sec.300 of I.P.C.,
and it has got to be considered by this Court.
7. This Court heard the learned Additional Public Prosecutor on the
above contentions.
8. It is not in dispute that the deceased Natarajan who was taken to
the hospital with injuries, succumbed to those injuries. In order to
substantiate the same, the prosecution has not only brought forth evidence
through P.Ws.1 and 2, but also relied on the Doctor’s evidence and the
postmortem certificate Ex.P12 issued by him. It is also pertinent to point
out that the accused never questioned the truth of this fact either before the
lower Court or before this Court. Hence, it can be safely concluded that
Natarajan died out of homicidal violence.
9. In order to establish the fact that it was the accused, who
stabbed the deceased at the time of the occurrence, P.Ws.1 and 2 have been
examined. True it is that P.W.1 is the wife, and P.W.2 is the cousin brother
of the deceased. But, merely on the ground of relationship, the evidence of
the witnesses cannot be rejected. Despite the careful scrutiny of the
evidence of P.Ws.1 and 2, it remains unshaken, and the lower Court was
perfectly correct in accepting their evidence. That apart, their evidence is
fully corroborated by the medical evidence, and thus, the prosecution has
brought forth sufficient evidence to hold that it was the accused, who stabbed
the deceased at the time of the occurrence, and consequently he died.
10. So far as the act of the appellant/accused was concerned, the
Court has to necessarily agree with the learned Senior Counsel for the
appellant. In the instant case, even from the case of the prosecution, it
could be seen that the deceased owed Rs.5,000/- to the appellant, and a demand
was made; but, it was not repaid. The evidence would further go to show that
at the time of the occurrence, the appellant came over to the house of the
deceased, and when a demand for return of Rs.5,000/- was made, the same was
not repaid, and though the appellant/accused asked the deceased to pay at
least Rs.2,000/-, the deceased could not do so, and thus, there was a quarrel
ensued between the parties for about 15 minutes preceding the occurrence, and
following the same, the appellant/accused stabbed him in a sudden fight in the
heat of passion upon a sudden quarrel. Under the circumstances, this Court is
of the view that the appellant/accused is entitled to have the benefit of
exception 4 to Sec.300 of I.P.C. In the instant case, it can be well stated
that the act of the accused would not fall within the ambit of murder. But,
at the same time, though it is not intentional or premeditated, he should have
got the knowledge that his act would likely to cause the death of the other
party. In such circumstances, this Court is of the considered opinion that
the appellant/accused has got to be found guilty under Sec.304 (Part I) of
I.P.C., and awarding the punishment of 7 years Rigorous Imprisonment would
meet the ends of justice. Hence, the conviction of the appellant/ accused
under Sec.302 of I.P.C. and the consequent sentence imposed upon him are set
aside, and instead, he is convicted under Sec.304 (Part I) of I.P.C. and is
directed to undergo 7 years Rigorous Imprisonment.
11. In the result, with the above modification in conviction and
sentence, this criminal appeal is dismissed. The sentence already undergone
by the appellant/accused, shall be given set off. It is reported that the
appellant is on bail. Hence, the Sessions Judge shall take steps to commit
him to prison to undergo the remaining period of sentence imposed upon him.
Index: yes
Internet: yes
To:
1)The II Additional Sessions Judge, Erode.
2)The II Additional Sessions Judge, Erode,
Through The Principal Sessions Judge, Erode.
3)The District Collector, Erode District.
4)The Director General of Police, Chennai.
5)The Public Prosecutor, Madras.
6)The Superintendent, Central Prison, Coimbatore.
7)The Inspector of Police, Malayampalayam Police Station
Erode District, (Crime No.313 of 1997)
nsv/