JUDGMENT
1. Delay condoned.
2. This is an appeal under Section 379 of the CrPC read with Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act. The sole applicant was tried for an offence punishable under Section 302, I.P.C. for causing the death of one Karuthammal, the deceased, by cutting her with a knife on her abdomen and left knee on 22-6-78 at about 9.30 p.m. as a result of which the deceased died in the Erskine Hospital, Madurai on 30-6-78. The case rested mainly on the evidence of P. Ws. 1 and 2, the eye-witnesses and other circumstantial evidence. The trial Court rejected the evidence of the eye-witnesses on the ground that they could not have been residing in the house in which the occurrence has taken place. In an appeal against the said acquittal the Division Bench of the High Court in an elaborate judgment considered the entire evidence on record and the reasons given by the trial Court in rejecting the same and reached the conclusion that the view taken by the trial Court is perverse and unreasonable and accordingly set aside the order of acquittal and convicted the appellant under Section 302, I.P.C. and sentenced him to undergo imprisonment for life. Hence the present appeal.
3. Mr. M. S. Ganesh, learned Counsel for the appellant submits that the Division Bench of the High Court has overlooked the fact that two views are possible in this case and erred in reversing the view taken by the trial Court which is also a reasonable one. In other words, the submission is that the prosecution has not established its case beyond all reasonable doubt and, therefore, the trial Court was right in acquitting the appellant.
4. To appreciate the submission, it be comes necessary for us to state few facts.
5. The deceased was the step-mother of the appellant and Muthukannu Thevar, husband of the deceased and father of the accused, was residing in a house in First Street, Ram Nagar, Marimedu, with Madurai City. The said Muthukannu Thevar, besides the above house, was also owning two other houses in this locality, a garden land in Peru game Vallur and other house site. His first wife was Meenakshi Ammal. The accused and his elder brother Bose were born to Thevar through his first wife. Bose had married Saraswathi, the daughter of Mokkamayandi who is his maternal uncle. About six years prior to the occurrence, Bose died. Thereafter his wife Saraswathi went to her parent’s house and lived with them. After the death of his first wife, Muthukkannu Thevar married the deceased as his second wife. P.W. 1 is the daughter of the deceased and she was given in marriage to P.W. 2. After their marriage P.Ws. 1 and 2 had been living in Pykara which is adjacent to Madurai. About some days thereafter, the accused demanded the deceased for a partition and in that account there were some disputes. However, a partition took place and it is alleged that the accused was living a wayward life and squandered away his properties. Having married Saraswathi, he asked again a share in the house. The deceased refused to give the share demanded by the accused. On account of this, the accused began to stay in the house of P.W. 12 Subbiah adjacent to the house of the deceased where he was giving trouble to the deceased and a complaint was given by her. While matter stood thus, at about 9 p.m. on 22-6-78 after taking food, P.W. 1 and her husband P.W. 2 were sitting in the open terrace in the first floor, the moon was shining bright and the street lamps were also burning. P. Ws. 3 and 4 were sitting in the threshold of the house. Just then the accused came inside by passing through the doorway armed. with the knife and stabbed the deceased on the abdomen and inflicted injury on the left knee. P.Ws. 1 and 2 shouted and the accused was seen brandishing the knife and threatening the people present there. On hearing the alarm raised by P.W. 1 and the deceased P.Ws. 3 and 4 came there and saw the accused running away. P.Ws. 1 and 3 kept the injured in the auto-rickshaw and took her to the Government Hospital. P.Ws. 2 and 4 thereafter locked the house and went to the Hospital. P.W. 16, the doctor who was working as an Assistant Surgeon in the Hospital treated the injuries. He found one incised wound left and over the middle of abdominal wall and another simple injury on the left knee. P.W. 16 informed the police also as it was a medico-legal case. The Sub-Inspector came to the Hospital and he examined the deceased and registered the crime. Meanwhile, the injured was being treated in the Hospital and the Judicial II Class Magistrate came to the Hospital at about 11.20 p.m. and recorded dying declaration of the injured (Ex, P.13) which was attested by the doctor at the time of recording. In the said dying declaration the deceased has clearly stated that the appellant stabbed her. Since an operation was necessary and it was conducted by P.W. 14 but the deceased died on 30-6-78. The death intimation was sent to the police in the Erskine Hospital Outpost. P.W. 13, the Doctor who conducted the postmortem found that there were injuries to the small intestine. The abdominal wall at the site of injury was gangrenous with offensive smell. The accused was arrested and after completion of investigation the charge-sheet was laid.
6. The prosecution examined 25 wit nesses. Out of them P. Ws. 1 and 2 figured as eye-witnesses.
7. The trial Court rejected the evidence of the two witnesses on the following ground :
(1) that the deceased being the mother-in- law of P. W. 2 would not have been conversant with P.W. 2 in the terrace;
(2) that the conduct of P. Ws. 1 and 2 either in not apprehending the accused in the terrace itself or in not requesting P. Ws. 3 and 4 or the neighbours to apprehend the accused indicates that P. Ws. 1 and 2 would not have been present at the time of occurrence and;
(3) the conspicuous omission of the name of P. W. 1 in the Hospital Records would show that she would not have accompanied the injured.
8. The High Court having elaborately considered the evidence of P. Ws. 1 and 2 and the above reasons given by the trial Court has rightly held that the view taken by the trial Court is perverse and unreasonable. We have gone through the evidence of P. Ws. 1 and 2 and we find that there is no reason whatsoever to doubt their presence in the terrace. That apart there is dying declaration also. The only view that is possible is that the prosecution has established beyond all reasonable doubt that the accused and accused alone caused these injuries to the deceased.
9. Now coming to the nature of the offence, the accused inflicted only one injury on the abdomen. The other injury on the left knee would also have been caused in the course of causing the other injury to the abdomen. The occurrence took place on 22-6-78 and the deceased died on 30-6-78. As already noted an operation was also conducted but gangrenous got set in. Therefore, these circumstances would show that the accused would not have intended to cause the death of the deceased by inflicting injuries which were sufficient in the ordinary course of the nature to cause the death. However, by inflicting this single injury he had knowledge that he was likely to cause the death in which case the offence is one punishable under Section 304, Part II, I.P.C. Accordingly, we set aside the conviction of the appellant under Section 302, I.P.C. and sentence of imprisonment for life awarded there under. Instead we convict him under Section 304, Part-II, I.P.C. and sentence him to undergo five years’ Rigorous Imprisonment. If the accused has already served out the sentence, he need not be arrested otherwise he shall surrender and serve out the remaining part of the sentence. The appeal is disposed of accordingly.