BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/12/2009 CORAM THE HONOURABLE MR.JUSTICE R.REGUPATHI AND THE HONOURABLE MR.JUSTICE R.SUBBIAH CRIMINAL APPEAL No.1503 of 2002 1.Shajee 2.Nandakumar ... Appellants/A.1 and A.2 Vs. State represented by The Inspector of Police, Nithiraivelai Police Station. ... Respondent/ Complainant Prayer Appeal filed under section 374 of the Code of Criminal Procedure, against the judgment dated 27.09.2002 in S.C.No.65 of 2000 passed by the learned Additional Sessions Judge, Nagercoil. !For Appellants ... Mr.K.P.S.Palanivel Rajan ^For Respondent ... Mr.Issac Manueal Additional Public Prosecutor * * * * * :JUDGMENT
(Judgment of the Court was made by
R.REGUPATHI, J.)
The appellants/accused are brothers. After trial by the Additional
Sessions Judge, Nagercoil, in S.C.No.65 of 2000, as against the accused on the
allegation that on 04.05.1998 at 11.30 a.m., they indulged in quarrel with the
deceased, pushed him down and stamped him, as a result thereof, the deceased
succumbed to the injuries on 07.05.1998 while getting treatment in the hospital
and in the same transaction, when P.W.1 attempted to prevent the accused from
assaulting the deceased, he was manhandled; by judgment dated 27.07.2002, they
were convicted under Section 302 I.P.C and sentenced to undergo life
imprisonment and to pay a fine of Rs.10,000/- with default sentence for causing
the death of one Krishnan and further convicted under Section 323 I.P.C and
sentenced to undergo rigorous imprisonment for six months, for causing injuries
on P.W.1/Krishna Kumar and both the sentences were ordered to run concurrently.
2. Aggrieved against the order of conviction and sentence passed by the
trial Court, the present appeal is preferred by the accused.
3. To substantiate the case of the prosecution, P.Ws.1 to 21 were
examined, Exs.P.1 to P.16 were marked and M.Os.1 to 3 were produced.
4. The facts, as unfurled from the evidence of witnesses, are narrated
below in a compact manner:
a) P.W.1, the son-in-law of the deceased deposed that on 04.05.1998, at
11.00 a.m, the deceased was proceeding towards the provisional shop of P.W.5 for
purchasing the provisions and on the way, the accused along with some other boys
were sitting in the wall and chatting by the side of the street and while the
deceased was crossing them, they passed comments against him. Thereafter, while
the deceased was returning after purchasing the provisions, the accused
obstructed and abused him, for which, the deceased spat against them, whereupon,
the accused reacted by saying that if such act was repeated, he would be
finished off. On the deceased spitting again, the first accused kicked the
deceased on the hip while the second accused fisted him on the right cheek and
the attack fell on the forehead of the deceased. After the deceased falling
down, A.2 kicked him and when P.W.1 came to the rescue of the deceased, he was
also assaulted by both the accused. On hearing the noise, P.Ws.2 to 4 came to
the scene of occurrence and on seeing them, the accused ran away from the scene
of occurrence. P.W.1, took the deceased in the taxi driven by P.W.6 and while
proceeding towards the police station, they stopped at the place of P.W.7 who
drafted the complaint signed by the deceased. At 2.30 p.m, P.W.18, Head
Constable at Nithiraivelai Police Station, received the complaint Ex.P.1, given
by the deceased accompanied by P.W.1 and treated the same as Petition Enquiry
No.105 of 1998 and sent the deceased and P.W.1 with police memo to the Hospital
for treatment after making entry in the General Diary as per Ex.P.10.
b) P.W.16, the Medical Officer attached to the Government Hospital,
Kuzhithurai, on 04.05.1998, at 03.00 p.m, examined the deceased and it was said
to him that the injuries were sustained on the same day at 11.30 a.m. due to
assault by two known persons and the wound certificate issued by the Medical
Officer is Ex.P.6. He also examined P.W.1 for the injuries sustained by him and
issued the wound certificate/Ex.P.7.
c) P.W.2, though cited as an eyewitness, did not support the case of the
prosecution insofar as the actual occurrence is concerned, however, stated that
he had seen both the accused running away from the scene of occurrence.
d) P.W.3, the wife of P.W.1, who was cited as an eyewitness in the case,
corroborated the evidence of P.W.1. P.W.4, the wife of the deceased in her
evidence, stated that on coming to know about the quarrel between the accused
and the deceased, she rushed to the scene of occurrence and witnessed the
incident. P.W.5, who was examined to substantiate that the deceased had visited
his shop for purchasing the provisions, did not support the case of the
prosecution and therefore, he was treated as hostile.
e) P.W.6 took the deceased and P.W.1 to the police station in his taxi and
thereafter, to the Hospital and for which, he was paid Rs.120/-. P.W.7 was
examined to substantiate that he had written the complaint/Ex.P.1 to the
dictation of the deceased, but subsequently, he changed his version that such
complaint was drafted by him to the dictation of P.W.1 and therefore, he was
treated as hostile.
f) On 05.05.1998, at 11.20 p.m, P.W.9, the Medical Officer, Government
Hospital, Nagercoil, examined the deceased who was forwarded from the Government
Hospital, Kuzhithurai and the Accident Register issued is Ex.P.3. On
06.05.1998, P.W.10, the Radiologist took X-rays/M.O.1 series for the
injured/deceased and the X-ray report/Ex.P.4 revealed “Fracture of neck of right
femur”.
g) P.W.11/Medical Officer found the injured unconscious on 06.05.1998 and
in spite of the treatment, the deceased died on 07.05.1998, at 6.30 p.m,
whereupon, the death intimation under Ex.P.5, was sent to the police.
h) P.Ws.12 and 13, who were examined to speak about the occurrence, did
not support the prosecution case, hence, they were treated as hostile.
i) P.W.19, deposed that on 05.05.1998, based on Ex.P.1, he registered a
case in Cr.No.223 of 1998 for offences punishable under Sections 341 and 323
I.P.C and prepared the F.I.R, Ex.P.11 and forwarded the same to Judicial
Magistrate No.2, Kuzhithurai and copies thereof to superior police officers. On
06.05.1998, at 9 a.m, he visited the scene of occurrence and prepared the
Observation Mahazar and Rough Sketch, Exs.P.2 and P.12 respectively, attested by
P.W.8. Thereafter, he visited the Government Hospital, Nagercoil, and recorded
the statement of the deceased. On 07.05.1998, he received the death intimation
from the Hospital and subsequently, assisted the Investigating Officer/P.W.20,
who took up investigation.
j) P.W.20, the Investigating Officer, after receiving the copy of the
F.I.R. on 07.05.1998, altered the offence as one under Section 302 I.P.C on
receipt of the death intimation and prepared Ex.P.15, Special Report and
forwarded the same to the Judicial Magistrate and thereafter, took up the
investigation and examined the witnesses. He conducted inquest over the dead
body of the deceased in the presence of the witnesses and Ex.P.16 is the inquest
report. He sent Ex.P.8/requisition through P.W.15 for conducting post-mortem.
k) P.W.17, the Medical Officer attached to the Government Hospital,
Nagercoil, conducted post-mortem on 07.05.1998 at 3.30 p.m on the dead body of
the deceased and issued Ex.P.9, the post-mortem certificate, wherein, he noticed
the following:
“INJURIES:
1.Contusion & swelling 1 cm diameter on right frontal region of scalp near
eye-brow. No fracture beneath on exploration.
2.Abrasion 1 cm diameter on right palm.
3.Contusion & swelling 10 cm diameter on the right hip joint on
exploration of the wound haemotoma was present over the right hip joint
extending into the upper third of right thigh. There was fracture neck of femur.
4.An abrasion 2 cm diameter on the right foot.
R.M. present in all four limbs. Appear to have died 8 to 10 hours prior to
P.M.
Heart: Wt.200 g.m. Chambers empty. c/s Pale.
Lungs: right 350 g.m. L-300 g.m c/s pale Hyoid bone was intact. Brain:1300
g.m. c/s pale-stomach 120 g.m. 100 ml. of dark coloured fluid was found. Liver –
wt.1300 g.m c/s. pale. Spleen : 90 g.m. c/s Pale. Kidneys – 90 g.m. each c/s.
pale.
Opinion: Appear to have died of shock & haemorrhage due to multiple
injuries.”
l) The Investigating Officer forwarded the material objects collected, to
the Court for receiving opinion and examined the witnesses and received opinions
from the Medical Officers.
m) P.W.21, took over the investigation from P.W.20 and on 23.04.1999,
examined the witnesses and he came to know that the accused surrendered before
the Court on 03.07.1998 and, on conclusion of the investigation on 27.09.1998,
he filed final report against the accused under Sections 302 and 323 I.P.C.
5. With reference to the incriminating materials adduced by the
prosecution, the accused were questioned under Section 313 Cr.P.C, for which,
they pleaded ‘not guilty’ and claimed innocence. No evidence was let in on the
side of the accused except marking a receipt dated 04.05.1998 issued at
Nithiravelai Police Station as Ex.D.1. The learned trial Judge, on perusal of
the materials available and after hearing the submissions made by both sides,
convicted the appellants/A.1 and A.2 and passed the order of conviction and
sentence as aforementioned; hence, the present appeal.
6. Learned Counsel for the petitioner submits that the independent
witnesses, who are said to have witnessed the occurrence, did not support the
case of the prosecution and that the learned trial Judge relied on the evidence
of P.W.1, son-in-law of the deceased, P.Ws.3 and 4, the wife of P.W.1 and the
wife of the deceased respectively, insofar as the actual occurrence is concerned
though their evidence, which is self-contradictory and discrepant in material
particulars, does not deserve acceptance so as to convict the accused.
Admittedly, P.W.4 came to the scene of occurrence after hearing noise and the
presence of P.W.3 at the scene of occurrence was not mentioned in Ex.P.1, the
complaint given by the deceased. Though the deceased is said to have given the
complaint to the police, there are contradictions as to who actually lodged the
complaint. The deceased, who was admitted in the hospital, was alive for a
couple of days and it seems, no serious effort was taken to record the dying
declaration of the deceased; therefore, the presumption is that the occurrence
might not have taken place in the manner as put forth by the prosecution.
7. In the alternative, it is submitted that there was no premeditation and
intention on the part of the accused to cause the death of the deceased.
Admittedly, the accused were not armed with any weapon and even as per the
evidence of P.W.1, it was the deceased who spat against the accused and in spite
of the caution given by the accused, the deceased again spat at them, and only
under such circumstances, the provoked accused manhandled the deceased, hence,
the offence under Section 302 I.P.C is not attracted and the appellants may be
convicted for a lesser offence.
8. Per contra, learned Additional Public Prosecutor submits that P.W.1,
though related to the deceased, is an injured eyewitness and the evidence of
P.Ws.3 and 4 cannot be doubted merely on the meak reason that they are related
to the deceased, because, the place of occurrence and the residence of the
deceased was at a close proximity. Though P.W.2 was treated as hostile, he
admitted that he saw the accused running away from the scene of occurrence. It
is the case of the prosecution that the complaint was drafted as per the
dictation of the deceased and the deceased signed in Ex.P.1. Inasmuch as the
fact remains that both the deceased and P.W.1 were assaulted by the accused, the
contradiction pointed out stating that it is not clear as to who actually
dictated Ex.P.1, does not appear to be serious so as to affect the prosecution
case, for P.W.7, the scribe of the complaint Ex.P.1, admitted that he was the
person who wrote down the same. The evidence of the Medical Officers and the
wound certificate issued to the deceased also reveals the information regarding
the place of occurrence and about the assault on the deceased by known
persons/accused. The injuries sustained have been described in the wound
certificate recorded on the same day and even before treatment was given to the
deceased and P.W.1, Ex.P.1, the complaint came into existence and subsequently,
F.I.R was registered. Learned Additional Public Prosecutor submits that even
though the accused did not intend to kill the deceased, they had knowledge
having regard to their overt acts against the deceased, an aged person, their
act may cause the death of the deceased.
9. We have given our thoughtful consideration to the rival submissions
made on either side having regard to the materials available on record.
10. It is the case of the prosecution that the accused were sitting and
chatting along with their friends by the side of the street and the deceased, at
the time of crossing them, is said to have spat towards the direction in which
the accused were sitting. As per the statement made by the deceased in Ex.P.1,
the actual occurrence is said to have taken place at the time when he was
returning after purchasing the provisions. It must be borne in mind that Ex.P.1,
the complaint, was given by the deceased himself and it would amount to a dying
declaration. It is stated therein that the accused picked up a quarrel with
the deceased by questioning him as to how he could spit against them and though
it was replied that there was no reason for him to spit against the accused, a
wordy quarrel ensued in which both the accused manhandled the deceased and
kicked him fiercely after he fell down.
11. The evidence of P.W.1, slightly proceeds differently and it is stated
that the accused abused the deceased, for which, the deceased spat against them,
whereupon, the accused cautioned the deceased not to do so and in spite of that,
the deceased spat against them again, whereupon the accused assaulted the
deceased. Though it is the evidence of P.W.1 that the deceased was ridiculed by
mentioning the community he belonged to, no such allegation finds place in
Ex.P.1. Even though P.W.7 admitted that it was he who drafted the complaint,
there is contradiction as to on whose dictation such complaint was prepared by
him.
12. Under such circumstances, we are of the considered opinion that the
origin and genesis of the prosecution case, has not been correctly and clearly
put forth. The fact remains that the accused, who were sitting and chatting
along with other friends, were not armed and they assaulted the deceased with
hands and legs and for which, the deceased also contributed by spitting against
the accused and thereby provoked them. Initially both the accused assaulted the
deceased with hands and subsequently, when he fell down, they stamped him on the
hip resulting in injury No.3 which turned to be fatal. The occurrence took
place on 05.05.1998 and in spite of the treatment given, the deceased succumbed
to the injuries on 07.05.1998.
13. Though there are contradictions in the testimonies of the witnesses,
they are not so material to discard the entire case of the prosecution, for, the
involvement of the accused in the occurrence and the overt acts attributed to
them have been corroborated through the Medical evidence. P.W.16 examined both
the deceased and P.W.1 on the same day and issued the wound certificates
wherein, it is clearly mentioned that the injured were assaulted at 11.30 a.m by
two known persons near their residence with hands and legs. Even before P.W.16
examined the deceased and P.W.1, the complaint was drafted by P.W.7 and it was
received by P.W.18 and subsequently, a case was registered by P.W.19 without any
loss of time and thereafter only, they were taken to the hospital for treatment.
14. Even though the involvement of both the accused and the overt acts
attributed to them cannot be disputed, it must be taken note of that the accused
were not armed with any weapon and there was no premeditation on the part of the
accused to cause the death of the deceased. The deceased would have eased the
situation acting wisely by not repeating the act, for it is the evidence of
P.W.1 that he aggravated the situation by spitting against them in spite of the
accused telling him not to do so and the provoked accused, after the deceased
fell down, stamped him on hip and the injury resulted on account of such
stamping turned to be fatal since the deceased was already fragile. Under such
circumstances, we are of the view that the offence alleged under Section 302
I.P.C is not made out. However, the accused had knowledge that if such assault
was made on the deceased, an old man aged 75 years, it would result in grievous
injury or cause his death and unmindful of the same, they assaulted him.
15. In this context, it is relevant to rely upon the observations made by
the Honourable Supreme Court in Muthu v. State reported in (2008) 1 MLJ (Crl)
1410 (SC), wherein it has been held as follows:
“11. No doubt, even in the heat of the moment or fit of anger one should
not attack somebody since human beings are different from animals inasmuch as
they have the power of self-control. Nevertheless, the fact remains that in the
heat of the moment and in a fit of anger people some times do acts which may
not have been done after premeditation. Hence the law provides that while those
who commit acts in the heat of the moment or fit of anger should also be
punished, their punishment should be lesser than that of premeditated offences.
It is for this reason that Exceptions 1 and 4 have been inserted in Section 300
I.P.C.
12. We may also refer to Exception 4 to Section 300 I.P.C. which reads as
under:
“Exception 4 – Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel and
without the offender having taken undue advantage or acted in a cruel or unusual
manner”.
13. The difference between Exception 1 and Exception 4 to Section 300 has
been explained by this Court in Pappu V. State of M.P. AIR. 2006 SC 2659:(2006)7
SCC 391: (2006)2 MLJ(Crl) 734. In our opinion, the present case also comes under
Exception 4 to Section 300 I.P.C. since the ingredients of Exception 4 are all
satisfied in the facts of the present case.
14. In our opinion, throwing waste and rubbish inside the house or shop of
somebody is certainly a grave and sudden provocation. Everyone wishes to keep
his premises neat and clean, and is likely to loose his self-control in such a
situation. The incident in question occurred in a sudden fight and a heat of
passion by a sudden quarrel without the appellant having taken undue advantage
or acted in a cruel or unusual manner. Hence the appellant is entitled to the
benefit of Exceptions 1 and 4 and the case comes under Section 304 I.P.C.”
16. Applying the principle laid down in the above precedent to the facts
and circumstances of the present case, we set aside the conviction under Section
302 I.P.C. and hold that the appellants/accused are guilty under Section
304(Part II) I.P.C and accordingly, they are sentenced to undergo rigorous
imprisonment for three years. Since the case of the prosecution is very clear
regarding the assault on P.W.1 at the hands of the accused, the conviction and
sentence passed against them under Section 323 I.P.C is confirmed. Both the
sentences are ordered to run concurrently and for the period of imprisonment
already undergone, both the accused are eligible for “set off”.
17. It is reported that, while entertaining the appeal, the substantive
sentence of imprisonment was suspended by this Court, enlarging the
appellants/accused on bail. In view of the conclusion reached now, the bail
bonds executed by the accused before the Committal Magistrate shall stand
cancelled and the trial Court is directed to forthwith take steps to secure the
appellants/accused for committing them to custody so as to undergo the remaining
part of sentence, if any.
18. With the above modification, this appeal is partly allowed.
rsb
To
1.The Additional Sessions Judge, Nagercoil.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.