IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.592 of 2003 Radhakrishnan .. Appellant Vs. Inspector of Police, Kachirapalayam Police Station, Villupuram District. (Crime No.339 of 2001) .. Respondent Criminal Appeal against the judgment dated 27.3.2003 in S.C.No.138 of 2002 on the file of the Principal Sessions Court, Villupuram. For appellant : Mr.A.Padmanaban For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) ORDER
The Criminal Appeal arises out of the judgment of conviction and sentence passed by the Principal Sessions Court, Villupuram on 27.3.2003 in S.C.No.138 of 2002, convicting the appellant-A.1 for the offence under Section 304 (Part-2) IPC and sentencing him to undergo rigorous imprisonment for five years and imposing a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for six months.
2. The case of the prosecution is as follows:
(a) P.W.1 is the son of the deceased Dhanam and P.W.2 is the husband of the deceased Dhanam. The appellant-A.1 is the brother-in-law of the deceased.
(b) On 10.9.2001 at about 9 a.m., there was a wordy altercation between the appellant-A.1 and P.W.3 near the house of A.1. At that time, the deceased Dhanam intervened and directed A.1 to leave the place, for which A.1 sakid that she need not interfere and then they left the place. On the same day at 10 a.m., both the accused came near P.W.1’s house and abused Dhanam in filthy language, for which the deceased Dhanam asked him as to why he came there and raised voice. There was a wordy altercation between them. A.2 caught hold of the deceased Dhanam. A.1 took out a knife from his waist and stabbed him. Dhanam fell down. Both the accused left the place. Immediately, the deceased Dhanam was taken to hospital. On the way to the hospital, the deceased died. The incident was witnessed by Angamuthu and Pachai Ammal.
(c) P.W.1 gave a complaint in Ex.P-1. P.W.10 Sub-Inspector of Police received the complaint on 10.9.2001 at 1.30 p.m. and registered a case in Cr.No.339 of 2001 for the offences under Sections 341 and 302 IPC and prepared Ex.P-13 FIR.
(d) P.W.12 Inspector of Police took up the matter for investigation. He went to the place of occurrence and in the presence of P.W.4 and others, he prepared Ex.P-2 observation mahazar and drew rough sketch Ex.P-17 and seized M.O.2 blood stained earth and M.O.3 ordinary earth, under Ex.P-3 mahazar. He took steps for taking photographs, which are marked as M.O.7 series and the negatives are M.O.8 series.
(e) P.W.12 Inspector of Police conducted inquest and prepared inquest report Ex.P-18. He sent the body for autopsy through P.W.8 Head Constable, who identified the body to P.W.11 Doctor.
(f) P.W.11 Doctor received Ex.P-14 requisition and conducted autopsy and issued Ex.P-16 post-mortem certificate, in which the following injuries are indicated:
“External injuries:
An AM penetrating wound of 1×1/2×14 cms, elliptical in shape with upper margin of the wound sharp edged, lower margin being ragged. The wound situated just below left clavicle and 3 cms away from sternocostal junction. The penetrating wound goes in a slanting fashion from above downwards. On exploration of the wound, the wound goes downwards penetrating left upper lobe of the lung and penetrating the anterior wall of heart. Thoracic cavity is full of blood around 3 litres.
Internal examination:
Liver: Pale, 1200 gms.
Lungs: Pale, Left: 450 gms Right: 400 gms.
Heart: Pale, 210 gms. The wound described above.
Spleen: Pale-90 gms.
Intestines: Distended with gas.
Stomach: Contains undigested food 250 ml.
Brain: Pale 1500 gms. Skull: Intact,
Hyoid bone: Intact.
Trachea: Full of blood with froth.”
(g) P.W.12 Inspector of Police has given Ex.P-8 requisition to send the viscera for chemical analysis. Ex.P-15 is the viscera report. Ex.P-9 is the letter of the Judicial Magistrate to the Forensic Sciences Laboratory, for chemical analysis of the blood stained articles, etc. The biological report is Ex.P-11 and the serologist’s report is Ex.P-12.
(h) After autopsy, P.W.8 handed over M.Os.4 to 6 which were seized by P.W.12 Inspector of Police, under Form 95 (Ex.P-6). On 11.9.2001, P.W.12 Inspector of Police arrested A.1 and A.2. A.1 gave confession and in pursuance of the same, he handed over M.O.1 which was seized under Ex.P-5 mahazar. He also seized the dresses of A.1 and A.2, which are M.Os.9 to 12, under Form 95 Ex.P-19.
(i) P.W.12 Inspector of Police examined the witnesses and concluded his investigation and filed the charge sheet against the accused for the offences under Sections 341 and 302 read with 34 IPC.
3. The trial Court framed necessary charges against the accused, for which the accused pleaded not guilty. Upon examining the witnesses P.Ws.1 to 12 and marking M.Os.1 to 12 and Exs.P-1 to P-19, the trial Court posed questions against the accused, under Section 313 Cr.P.C., putting the incriminating evidence against them, which were denied by them. On the basis of the oral and documentary evidence, the trial Court acquitted A.2 for the offence under Sections 341 and 302 read with 34 IPC and convicted the appellant-A.1 for the offence under Section 304 (Part 2) IPC and sentenced him as indicated above. Against that, the present Criminal Appeal has been preferred by the appellant-A.1.
4. Even though the appellant-A.1 preferred this appeal challenging the conviction and sentence, during the course of arguments, learned counsel for the appellant-A.1 submitted that the incident has taken place only out of sudden provocation, that there is no motive for commission of the offence, that the accused is the first offender and during trial, the appellant-A.1 was aged about 41 years, that the accused is having tender children and hence, he prayed for invocation of Section 4 of the Probation of Offenders Act.
5. Learned Government Advocate (Criminal Side) appearing for the respondent-Police would submit that P.Ws.1 to 3 are the eye-witnesses and their evidence proved that the accused alone caused the instantaneous death of the deceased Dhanam. The medical evidence of P.W.11 Doctor corroborates the same. The trial Court is correct in holding that the appellant-A.1 is guilty of the offence under Section 304 (Part-2) IPC. Learned Government Advocate fairly conceded that on verification, the appellant/A.1 is not having any bad antecedent and hence, he left the matter for the discretion of the Court for invoking Section 4 of the Probation of Offenders Act.
6. While considering the evidence of P.W.11 Doctor and Ex.P-15 viscera report and Ex.P-16 post-mortem certificate, it is seen that the death of the deceased is one of homicide and the deceased sustained only single stab injury and so, the trial Court has held that the accused is guilty of the offence under Section 304 (Part 2) IPC.
7. Furthermore, during questioning under Section 313 Cr.P.C., the appellant/A.1 has filed written statement that due to sudden provocation, he used screw driver to assault the deceased on her hand, and since the deceased turned suddenly, it fell on her chest and hence, she sustained stab injury, which lead to the instantaneous death.
8. It is pertinent to note that the deceased is none other than the sister-in-law of A.1. The fact that the death of the deceased is homicidal and the death of the deceased was caused by the appellant/A.1, have been proved by the prosecution. So, the conviction of the appellant/A.1 for the offence under Section 304 (Part 2) IPC is unassailable and the same is hereby liable to be confirmed.
9. Learned counsel for the appellant/A.1 would submit that since the appellant/A.1 is convicted for the offence under Section 304 (Part 2) IPC, and that the object of the Probation of Offenders Act may be extended to the persons who were convicted for the said offence and since the punishment as per Section 304 (Part 2) IPC is up to ten years and the trial Court has granted rigorous imprisonment for five years and hence, he prayed for invoking Section 4 of the Probation of Offenders Act.
10. It is appropriate to incorporate Section 4(1) of the Probation of Offenders Act, which reads as follows:
“Section 4: Power of Court to release certain offenders on probation of good conduct: (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient to release him on probation of good conduct, then notwithstanding anything contained in any other law for the time being in force the Court may instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour:
Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercised jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.”
11. In this regard, it is worthwhile to notice the decision of the Supreme Court reported in 1999 S.C.C. (Cri) 1046 (State of Karnataka Vs. Muddappa), in which it was held as follows:
“2. The learned counsel for the appellant is not in a position to assail the acquittal of the accused under Section 302 IPC, but he vehemently contends that the Court did not bear in mind germane considerations for releasing the accused on probation after convicting him under Section 304 Part II IPC. Whether the benefit of the Probation of Offenders Act could be extended in any particular case depends upon the circumstances of that case. Admittedly, there is no statutory bar for application of the Act to an offence under Section 304 Part II where the maximum punishment is neither death nor imprisonment for life. In that view of the matter and on examining the impugned judgment of the High Court, we find that the Court did consider the relevant material and then came to the conclusion that the accused should be released on probation by applying the provisions of Section 4 of the Probation of Offenders Act. We see no infirmity with that order to be interfered with by this Court after this length of time, more so when nothing has been pointed out as to whether the accused has, in any way, violated the terms and conditions of allowing him on probation.”
12. From the said decision (1999 SCC (Cri) 1046), it is clear that the benefit of Section 4 of the Probation of Offenders Act could be extended in any particular case, depending upon the facts and circumstances of that case.
13. As per the abovesaid decision of the Supreme Court reported ion 1999 SCC (Cri) 1046, even in cases of the offence under Section 304 (Part 2) IPC, the provisions of Probation of Offenders Act could be invoked for the good conduct of the accused.
14. In view of the abovesaid decision of the Supreme Court, and while considering the facts and circumstances of the present case, it is seen that out of sudden provocation, the occurrence has taken place, and that he was convicted by the trial Court on 27.3.2003 and this Court, while suspending the sentence of imprisonment, granted bail on 9.4.2003 and that he has not involved in any crime during and after the said period and that he is also not having any bad antecedent and therefore, I am of the view that the appellant/A.1 is entitled to be given the benefit of Section 4 of the Probation of Offenders Act.
15. In the result,
(a) the Criminal Appeal is dismissed.
(b) The conviction imposed on the appellant/A.1 for the offence under Section 304 (Part 2) IPC is confirmed.
(c) The sentence of imprisonment imposed on the appellant/A.1 for the offence under Section 304 (Part 2) IPC is set aside.
(d) The appellant/A.1 is released on probation of good conduct, for a period of two years and in the meantime, he shall maintain peace, be of good behaviour and shall appear and receive sentence when called upon during such period. The appellant/A.1 shall each execute a bond for a sum of Rs.25,000/- (Rupees twenty five thousand only) with two sureties each for a likesum to the satisfaction of the trial Court.
cs
To
1. Principal Sessions Court, Villupuram.
2. Inspector of Police,
Kachirapalayam Police Station,
Villupuram District.(Crime No.339 of 2001)
3. The Public Prosecutor, High Court,
Madras