JUDGMENT
M. Karpagavinayagam, J.
1. Accused Nos. 1 and 2 have filed Crl. Appeal No:1079 of 2001 and Accused No. 3 has preferred Crl. Appeal No: 838 of 2000, challenging the conviction imposed upon A.1 under Section 302 IPC and against A.2 and A.3 under Section 302 read with Section 34 IPC, and sentence imposed upon the accused to undergo life imprisonment and to pay a fine of Rs. 1000/= each, in default to undergo three months rigorous imprisonment.
2. The facts leading to the conviction are as follows:-
(a) The deceased Chandru is the son-in-law of P.W.1, Govindammal. A.1 and A.2 are brothers and A.3 is a petty shop owner. All are residing in the same area.
(b) On 31.3.1998, the deceased went to the petty shop belonging to A.3 and purchased beedies. When A.3 demanded money for the beedies purchased, the deceased refused to pay the same and went away. On noticing the attitude of the deceased, A.3 Rahmankhan went and complained to A.1 and A.2 viz., Periya Chakku and Chinna Chakku, who were residing nearby.
(c) Then at about 5.00 pm., all of them came to the deceased who was sitting near a temple and questioned him. There was a wordy quarrel. Suddenly, A.1 took out a knife from his dhoti and while A.2 and A.3 caught hold of both the hands of the deceased, A.1 with M.O.1, knife, stabbed on the chest and other vital parts of the body indiscriminately. The deceased fell down. P.W.1, mother-in-law who witnessed the ghastly sight came running near the deceased and poured water into his mouth. But, within a few minutes, the deceased died.
(d) At 6.00 pm., P.W.1 went to the Police Station and gave Ex.P.1, Complaint to P.W.9, Sub Inspector of Police. A case was registered in Crime No:608 of 1998 against all the three accused.
(e) P.W.10, the Inspector of Police, on receipt of message, took up investigation. He went to the spot and prepared a rough sketch, Ex.P.15 and observation mahazar, Ex.P.5. He recovered a bloodstained yellow colour half hand shirt (M.O.2), Bloodstained cement piece (M.O.3) and ordinary cement piece (M.O.4). At about 7.00 pm., P.W.10 conducted inquest and examined the witnesses, viz., P.Ws 1 and 2 and others and prepared Ex.P.16, inquest report. Thereafter with a requisition, Ex.P.2, the body was sent for postmortem.
(f) P.W.7, the Doctor, who received the requisition, conducted postmortem on 1.4.1998 at about 10.30 a.m., and found six injuries and after completion of the autopsy, he issued Ex.P.3, Postmortem Certificate.
(g) On 4.4.1998, P.W.10, Inspector of Police, arrested A.3 and on the basis of the confession, he recovered M.O.1. (h) P.W.11, successor in office took up further investigation on 17.4.1998. He came to know that A.1 surrendered on 17.4.1998 and A.2 surrendered on 11.8.1998. P.W.11 gave a requisition to the court to send the material objects for chemical examination.
(i) After completion of the investigation final report was filed against the accused.
(j) During the course of trial, P.Ws 1 to 11 were examined, Exs. P.1 to P.16 were marked and M.Os. 1 to 6 were marked. (k) The plea of the accused while questioning under Section 313 Cr.P.C., was one of total denial. On behalf of the accused, Exs.D.1 to D.5 were marked. The Trial Court, after analysing the materials available on record and particularly, the evidence of P.Ws 1 to 3, found A-1 guilty of offence under Section 302 IPC and found A.2 and A.3 guilty of offence under Section 302 read with Section 34 IPC. This finding is the subject matter of challenge in these appeals before this court.
3. Mr. R. Sankara Subbu, learned counsel appearing for A.1 and A.2 and Mr. M. Venkatesh, learned counsel appearing for A.3, would take us through the entire evidence and contend that the materials available on record would not be sufficient to hold the accused guilty of an offence under Section 302 IPC or 302 read with 34 IPC and at any rate, since the occurrence had taken place in a sudden quarrel and in the heat of passion, the accused at the most, can be found guilty only of an offence under Section 304(I) or (II) IPC in the light of Exception (4) to Section 300 IPC.
4. On this aspect, we have heard the Additional Public Prosecutor.
5. According to the Prosecution on 31.3.1998, the deceased went to the petty shop of A.3 and purchased beedies. However, when A.3 demanded money, the deceased refused to pay. On complaining about this incident by A.3, A.1 and A.2 accompanied A.3, went to the place where the deceased was sitting and questioned him about his conduct. There was a wordy quarrel between them. Both parties used abusive words against each other. Then, suddenly A.1 took out a knife from his waist and stabbed on the chest, neck and other parts of the body of the deceased. At that time A.2 and A.3 caught hold of the deceased. Then, the deceased on receipt of injures fell down and died on the spot.
6. This occurrence was witnessed by P.Ws 1 to 3. P.W.1 is the mother-in-law of the deceased. P.Ws 2 and 3 are related to the deceased. Immediately, P.W.1 went to the Police Station and gave Ex.P.1, complaint to P.W.9, the Sub-Inspector of Police. P.W.10, the Inspector of Police took up investigation and conducted inquest. During the course of the inquest, witnesses were examined. On 4.4.1998, A.3 was arrested and on his confession, the knife was recovered. Subsequently, on 17.4.1998 A.1 surrendered and on 11.8.1998, A.2 surrendered. P.W.1, mother-in-law of the deceased in her complaint Ex.P.1, mentions about the presence of P.W.2 and P.W.3. We are able to find out from the statement of P.W.2 that P.W.3 was also present. So, all the three persons were examined during the course of inquest.
7. The main thrust of the argument of Mr. R. Sankara Subbu, learned counsel appearing for appellants/accused 1 and 2 is that since it was a wordy quarrel, it resulted in the attack on the deceased, and therefore, the accused are liable to be convicted only for an offence under Section 304 (I) or (II) IPC in the light of Exception (4) to Section 300 IPC.
8. Exception (4) to Section 300 IPC would read thus:-
“Culpable homicide is not murder if it is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner”.
Thus, there are four elements which are necessary to attract Exception (4) to Section 300 IPC. They are: (i) without pre-meditation; (ii) in a sudden fight in the heat of passion; (iii) sudden quarrel; and (iv) without the offender having taken undue advantage or acted in a cruel or unusual manner.
9. In this case, it cannot be said that the occurrence had taken place out of a pre-meditation. It is also true that there was initially a quarrel and there was a fight upon the sudden quarrel. However, the last element, namely without the offender having taken undue advantage or acted in a cruel or unusual manner is not present in this case.
10. On the other hand, according to the prosecution, the accused with a long knife blade of 20 cm, gave heavy cuts on the vital parts of the body of the deceased. At that time, according to the prosecution, both A.2 and A.3, caught hold of both the hands of the deceased. The Postmortem Certificate, Ex.P.3 would give valuable details as to the nature of the injuries inflicted by A.1 on the deceased.
11. The external injuries are as follows:-
“1. An incised wound about 4 cm x 2 cms. Muscles deep present in the lobules of the left ear extending to the left cheek below the ear.
2. A stab wound, 4 cms x 2 cms x 9 cms depth in the 3rd left intercostal space at the midclavicular level.
3. An incised wound about, 4 cms x 3 cms x 17 cms depth seen in the 6th intercostal space on left side of the chest.
4. A stab wound about 4 cms x 2 cms x 6 cms depth just below the injury No. 3.
5. A stab wound about 4 cms x 3 cms x 6 cms in the left supra clavicular region close to the trachea.
6. a stab wound about 4 cms x 2 cms x 3 cms present at the back close to the 10th thoracic vertebra on right side.”
12. The second injury with a depth of 9 cms was found in the 3rd left intercostal space at the midclavicular level. The third injury with a depth of 17 cms was found in the 6th intercostal space on left side of the chest. There was also a stab wound about 4 cms x 2 cms x 6 cms depth just below the injury No. 3. The internal injuries as found in the postmortem certificate would indicate that the heart was torn in three places at the left atrium and 2 wounds were seen in left ventricle. A tear was present in the upper lobe and lower lobe of the left lung.
13. The above injuries would indicate that heavy force must have been employed by A.1. It is also seen that but for A.2 and A.3 catching hold of the deceased, six heavy blows would not have been inflicted by A.1. Therefore, even though the occurrence had taken place in a sudden fight or in a wordy quarrel, it cannot be said that the accused have not taken undue advantage and acted in a cruel manner. In other words, it is to be stated that without any proper reason or without any grave provocation, the accused took out the knife which was concealed in his dhoti and gave heavy cuts causing injuries to the vital parts of the body and caused his death. Therefore, in our view, Exception 4 to Section 300 IPC would not get attracted.
14. At the end, a faint attempt was made by Mr. R. Sankara Subbu, learned counsel for the appellants/accused 1 and 2 that the confession given by A.3 would indicate that some abusive words were used by the deceased and therefore, the occurrence had taken place and consequently, Exception (1) would get attracted.
15. This argument also, in our view, would not merit acceptance for the reason that the words used as contained in the confession statement given by A.3 would not give rise to a sudden and grave provocation. Those are the words normally used in the villages. Therefore, none of the contentions put forward by the leaned counsel for the appellants/accused 1 and 2 for lesser offence would merit consideration. Accordingly, we reject the same.
16. Mr. M. Venkatesh, learned counsel appearing for A.3 would submit that three documents have been marked to show that the actual name of A.3 is Abdul Rahman and not Rahmankhan. But, this contention also, in our view, may not be accepted for the reason that the evidence of P.Ws 1 to 3 would clearly indicate that identity of A.3 has also been established. It is not the case of A.3 that he did not own any petty shop and nothing has been elicited during the course of cross examination of P.Ws 1 to 3 that A.3 was a different person. Therefore, we reject this argument as well. Ultimately, we find no merit in these appeals.
17. In the result, both the Criminal Appeals are dismissed confirming the conviction and sentence imposed upon the appellants/accused by the trial Court.