IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.02.2010 CORAM : THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Criminal Appeal No.502 of 2006 Ramu .. Appellant -vs- State by Inspector of Police, Gangavalli Police Station, Salem District. (Crime No.81 of 2004) .. Respondent Appeal against the judgment dated 5.6.2006 made in S.C.No.37 of 2006 on the file of Principal Sessions Court, Salem. For Appellant : Mr.N.Manokaran For Respondent : Mr.N.R.Elango Addl. Public Prosecutor. * * * * * O R D E R
The appellant is the sole accused in S.C.No.37 of 2006 on the file of Principal Sessions Judge, Salem. By judgment dated 5.6.2006, the learned Judge convicted the appellant under section 304 Part-II IPC and sentenced him to undergo rigorous imprisonment for four years and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for six months. Challenging the said conviction and sentence, the accused is before this Court with this appeal.
2.The case of the prosecution in brief is as follows:- P.W.1 is the wife of the deceased Singaram. They were residing at Ariyampalayam village in Salem District. The accused is the nephew of the deceased. P.Ws.4 and 5 are the mother and wife respectively of the accused. They were also residing in the same village. The deceased was a drunkard. On 9.5.2004, the deceased came to the house of the accused and entered into the house when the accused and his wife were not at home. The mother of the accused, viz., P.W.4 alone was there. When P.W.5 returned back, she found the house bolted from inside. She went in search of the accused and brought him back. They found the deceased and P.W.4 in a suspicious manner inside the house. There ensued a quarrel over the same. The appellant is alleged to have taken M.O.1, wooden log and gave a blow on the abdomen of the deceased. Then, he ran away. It was witnessed by P.Ws.2 to 5. P.W.1 was not an eye witness to the occurrence and she was informed about the occurrence subsequently.
3.The deceased was taken to the Government Hospital at Salem on 12.5.2004 at 9.00 a.m. The deceased was conscious. He told the doctor that he sustained injury due to an accidental fall into a pit of 8 feet depth on 9.5.2004 at 7.00 p.m. near his house. He was admitted as an in-patient. It appears, a surgery was conducted on the abdomen. While he was undergoing treatment as an in-patient, on information from the hospital authorities, P.W.9, Sub-Inspector of Police attached to Gangavalli police station, Salem District, proceeded to the hospital and recorded the statement of the deceased at 3.00 p.m. on 15.5.2004. Ex.P-13 is the said statement of the deceased. Based on the same, he registered a case in Crime No.81 of 2004 under Section 325 I.P.C.
4.Taking up the case for investigation, on the same day, he proceeded to the place of occurrence at 4.00 p.m. and prepared an observation mahazar in the presence of P.W.6 and another witness. He also prepared a rough sketch. Then, he proceeded to the hospital and recorded the statements of few witnesses. While so, on 16.5.2004 at about 4.15 a.m., the deceased died. P.W.9 received intimation, Ex.P-16 from the hospital in this regard. Therefore, he altered the case into one under Section 302 I.P.C. and prepared an alteration report under Ex.P-17. He forwarded the same to the Court.
5. P.W.10, Inspector of Police, thereafter took up the case for investigation. He held inquest on the body of the deceased between 7.00 a.m. to 10.00 a.m. on 17.5.2004 and prepared the report Ex.P-18. He took photographs of the body with the help of a photographer. Ex.P-19 are the photographs. Then, he forwarded the body for post-mortem.
6. P.W.8. Dr.Vallinayagam, the then Professor of Forensic Medicine, Government Hospital, Salem, conducted post-mortem on the body of the deceased and he found the following injuries:-
External Injuries:
1. A vertical sutured wound over the middle of abdomen 15 cm. in length (surgical), drainage tube present on both sides of abdomen (surgical).
2. A contusion present on upper and left side of abdomen 15 x 10 x 3 c.m.
Internal
A sutured wound present on the small intestine 3 x 1 x 0.5 cm. (perforation sutured). Pus present in the intestinal cavity 200 ml. (Loops adherent) (Anti Mortem injury).
Ex.P-10 is the post-mortem certificate. According to him, the deceased died due to the effects of the abdominal injuries.
7.Continuing with the investigation, P.W.10 arrested the accused on 18.5.2004 at 6.00 a.m. On such arrest, the accused gave a voluntary confession. Within the said disclosure made, M.O.1, wooden log, was recovered under Ex.P-8 mahazar in the presence of P.W.7, Village Administrative Officer and another witness. He examined the doctors, collected the medical records and examined a few more witnesses. Finally, after completing investigation, he laid the charge sheet against the appellant under section 302 I.P.C.
8.Based on the above materials, the trial Court framed a charge under Section 302 I.P.C. The appellant denied the same. Therefore, he was put on trial.
9.During trial, on the side of the prosecution, as many as 10 witnesses were examined, 20 documents were exhibited and two material objects were marked. When the incriminating evidences available against the appellant were put to him under Section 313 Cr.P.C., he denied the same. According to him, when he entered into his house, he found his mother (P.W.4) and the deceased in a compromising position. Enraged over the same, according to him, he took out a small stick and caused one blow each on the deceased as well as P.W.4.
10.Having considered all the above materials, the trial Court found the accused guilty under Section 304 Part-II I.P.C. and imposed appropriate punishment. It is against the same, the accused has come forward with this appeal.
11.The learned counsel appearing for the appellant would mainly contend that as per the statement made by the deceased to the doctor at the earliest point of time, as found in the accident register, the deceased fell down into a deep pit and that is the reason why he died. The learned counsel would further submit that assuming that the deceased died due to the attack made by the accused, the same can never be termed as either intentional or with the knowledge that the said attack would result in the death of the deceased. In nutshell, the learned counsel would submit that the offence would only fall under section 325 I.P.C. To substantiate the said contention, the learned counsel would rely on Ex.P-13, the statement of the deceased made to the Sub-Inspector of Police. He would also rely on the evidences of P.Ws.2 to 5 to substantiate the said plea.
12.The learned Additional Public Prosecutor would submit that the statement of the deceased entered in the accident register cannot be given weightage in view of the fact that the accused himself has admitted in his statement under Section 313 Cr.P.C. that the deceased sustained injury only due to the assault made by him. He would further submit that the offence would fall squarely under Section 304 Part-II I.P.C. and not under Section 325 I.P.C., as claimed by the learned counsel for the appellant.
13.I have considered the rival submissions. Of course, it is true that at the earliest point of time, the deceased had told that he sustained injury due to fall into a deep pit. But, in my considered opinion, the said statement cannot be believed for the simple reason that the accused himself has taken the plea that the deceased sustained injury only due to the attack made by him. It could be inferred that the deceased, with a view to save the accused, who is after all his brother’s son, would have thought of giving such a statement to the doctor. Therefore, no weightage could be given to the said statement as it cannot be believed to be a true statement. Subsequently, he has given a dying declaration to the Sub-Inspector of Police under Ex.P-13. There is no cross-examination denying the correctness of the said dying declaration. In the said dying declaration, the deceased has categorically stated in a vivid manner as to how the occurrence took place and as to how he was attacked by the accused. I find no reason to reject the said dying declaration. The said dying declaration is duly corroborated by the eye witness account of P.Ws.2 to 5. Above all, it is the positive admission made by the accused himself that he only attacked the deceased on his stomach with a stick resulting in an injury to him. From these materials, I am sure that the prosecution has clearly established that the deceased was attacked by the accused with a wooden log causing injury, which resulted in his death.
14.Now, coming to the question regarding the nature of offence that has been committed by the accused, in the dying declaration, the deceased has categorically stated that he was in the house of the accused along with P.W.4, the mother of the accused. At that time, P.W.5 and the accused were not at home. The dying declaration further proceeds to say that P.W.5 came and she found the deceased and P.W.4 together inside the house. Thereafter, according to the dying declaration, P.W.5 had suspicion over the conduct of the deceased and P.W.4 and rushed to bring the accused. The accused immediately rushed to the house. He also found the deceased with his mother inside the house. The evidences of P.Ws.2 to 4 would also clearly go in support of the above version found in the dying declaration. It is because of this, the accused has caused one single blow on the abdomen of the deceased.
15.A perusal of the post-mortem certificate would go to show that there was an injury caused to the intestine. The deceased was operated upon to correct the injured small intestine. Despite the treatment, he passed away. But, unfortunately, neither the doctor, who admitted the deceased in the hospital nor the doctor who treated the deceased nor the doctor who conducted surgery had been examined. Therefore, the prosecution has failed to adduce the best evidence available in respect of the nature of external injuries, nature of treatment and the nature of internal injuries found on the deceased. The learned Additional Public Prosecutor would submit that the doctor who made entry in the accident register was not available, as spoken to by P.W.8 and that is the reason why he could not be examined. But, I am not prepared to accept this explanation. It is not in evidence as to how and why the said doctor was not available for examination before the Court. Absolutely there is no explanation as to why the doctor, who conducted the surgery on the deceased, was not examined. Therefore, according to me, the best evidence regarding the nature of injuries, nature of treatment and in fact, the cause for the death has not been produced by the prosecution. However, in the post-mortem certificate, it could be seen that there was a small injury to the intestine. Therefore, it could be inferred that a surgery was conducted to correct the same. Thereafter, the deceased died despite treatment. Why he died and what was his condition before his death have not been placed before the Court by producing the medical records. Had the medical records been produced and had the doctor who attended on the deceased been examined, certainly the best evidence regarding the condition of the deceased before his death would have been on record so that it would have been easier for this Court to know the nature of injuries sustained by the deceased.
16.To attract an offence under Section 304 Part-II I.P.C., first of all, the act of the accused should satisfy the ingredients of Section 300 or Section 299 I.P.C. It may be said that the act of the accused would fall under ‘fourthly’ of Section 300 I.P.C. Similarly, it may also be argued that it would fall at least under ‘thirdly’ of Section 299 I.P.C. But, in my considered opinion, it is not so. P.W.8, Doctor, who conducted the autopsy on the body of the deceased, has not at all stated that these injuries found on the deceased could have been either sufficient to cause death or at least likely to cause death. Further, the knowledge as required under ‘fourthly’ of Section 300 I.P.C. also cannot be attributed to the accused. It is common knowledge that it is not every attack which is made on the abdomen results in death. It occurs very rarely. Therefore, because of the attack made on the abdomen of the deceased with a stick, one cannot attribute so much of knowledge in terms of ‘fourthly’ of Section 300 I.P.C. that such attack would result in the death of the deceased. Therefore, I am of the view that the act of the accused did not satisfy the ingredients of ‘fourthly’ of Section 300 I.P.C. and hence, the question of bringing the same under any of the exceptions would not arise. Similarly, for want of evidence to the effect that the injury is likely to cause death, it will not fall under ‘thirdly’ of Section 299 I.P.C. also. Then the question arises for what offence is the accused liable to be punished.
17.While dealing with a similar situation, the Hon’ble Supreme Court in Jani Gulab Shaikh v. The State of Maharashtra, 1970 SCC (Cri.) 532, after having elaborately dealt with the injury, etc., had ultimately convicted the accused only under Section 323 I.P.C. That was a case where the injury was a simple injury. But here, in this case, though it has not been opined by P.W.8 that the injury was a grievous injury, in view of the fact that there was an injury to intestine, it can be safely held that the injury is grievous in nature. If that be so, as held by the Hon’ble Supreme Court in Jani Gulab Shaikh’s case, cited supra, I am of the view that the offence would squarely fall within the ambit of Section 320 I.P.C. The weapon used in this case cannot be termed as an ordinary weapon. Going by the size of the weapon, etc., I hold that it is a dangerous weapon and therefore, the offence would squarely fall under section 326 I.P.C. Accordingly, the appellant is liable to be punished for the offence under Section 326 I.P.C.
18.In respect of quantum of punishment, at the time of occurrence, the accused was aged 24 years. He was already married and has children. From the records, it could be seen that he hails from a poor family and he was in jail for about nine months during the period of investigation and trial. Having regard to the above facts and also the events which led to the occurrence, I am of the view that the period of sentence already undergone by the accused shall meet the ends of justice, besides the fine amount of Rs.1,000/-.
19.In the result, the appeal is partly allowed in the following terms:-
(i) The conviction and sentence imposed on the appellant for the offence under Section 304 Part-II I.P.C. are set aside and instead, he is convicted for an offence under Section 326 I.P.C.;
(ii)For the said conviction, he is imposed with a sentence of imprisonment for the period already undergone, besides the fine amount of Rs.1,000/-, in default, to under simple imprisonment for one month; an
(iii)The bail bonds executed by the appellant shall stand cancelled.
23.02.2010
Index : Yes
Internet : Yes
sra
To
1. The Principal Sessions Judge,
Salem.
2. The Inspector of Police,
Gangavalli Police Station,
Salem District.
3. The Public Prosecutor,
High Court, Madras.
S.NAGAMUTHU, J.
(sra)
Crl.A.No.502 of 2006
23.02.2010