BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03/04/2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU Criminal Appeal No.1648 of 2002 Thangaraj .. Appellant vs. State, rep. by Inspector of Police, Colachel Circle, Pudukadai Police Station, Cr.No.8 of 1986, Kanyakumari District. .. Respondent Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure against the judgment of the learned Principal Sessions Judge, Kanyakumari District at Nagercoil, dated 11.06.2002 in Sessions Case No.73 of 1986. !For Appellant ... Mr.T.R.Subramanian ^For Respondent ... Mr.K.Radhakrishnan, Additional Public Prosecutor :JUDGMENT
(The judgment of the Court was delivered
by P.D.DINAKARAN,J.)
The appellant calls in question the legality of the judgment dated
11.06.2002 rendered in Sessions Case No.73 of 1986 on the file of Principal
Sessions Judge, Kanyakumari District at Nagercoil, whereunder the appellant, who
was the sole accused, was convicted for the offences punishable under Sections
324 and 302 I.P.C. and sentenced to undergo two years rigorous imprisonment with
a fine of Rs.500/- in default to undergo simple imprisonment for two months
under Section 324 I.P.C. and life imprisonment with a fine of Rs.1000/- in
default to undergo simple imprisonment for six months under Section 302 I.P.C.
2. The charge against the appellant is that on 14.01.1986 at about 1.00
p.m. at Ananthamangalam, he cut P.W.1 on her left shoulder with palai aruval
(M.O.1) and caused injury, which act is punishable under Section 324 I.P.C. and
in the course of the same transaction, with an intention to cause the death of
the deceased, he cut her on the right side of her neck with palai aruval (M.O.1)
and caused her death, which act is punishable under Section 302 I.P.C.
3.1. Background facts are as under:
P.W.1, Kamalam and P.W.2, Rajakumari are the mother and younger sister of
the deceased in this case viz., Selvi, respectively. The deceased family and
appellant were residing in the same village, viz., Ananthamangalam. The
appellant was a drunkard and womaniser. Ten days prior to the occurrence, the
appellant beat his wife and she left the house. On 14.01.1986 at about 1.00
p.m. the appellant spoke with the deceased with a bad intention. On hearing
the same, P.W.1 questioned the appellant as to why he was speaking so with the
ladies when there were no male members in the house. P.W.1 informed about the
behaviour of the appellant to the neighbours. Immediately thereafter, the
appellant, with M.O.1, palai aruval, standing in front of the house of one
Muthiah shouted at the womenfolk with obscene words. By shouting at P.W.1 also
with obscene words, cut her on her left shoulder with M.O.1, palai aruval.
While the deceased questioned the same, the appellant cut the deceased on her
neck and caused her death.
3.2. When P.W.2 came to the scene of occurrence, the appellant tried to
assault her, but she escaped and hid inside the house.
3.3. P.W.3, Saraswathi, a neighbour, also saw the occurrence. The
appellant ran away from the scene of occurrence with the weapon.
3.4. P.W.1 went to Kulithurai Police Station at 2.00 p.m. on the same day
viz., 14.01.1986 and gave a statement to P.W.9, Sub Inspector of Police, who
reduced it into writing. Ex.P1 is the said statement. P.W.9 registered a case
in Crime No.8 of 1986 under Sections 324 and 302 I.P.C. and prepared Ex.P11,
printed first information report and forwarded the same to the jurisdictional
Magistrate. He sent P.W.1 to the hospital with a medical memo.
3.5. On receipt of wireless message from P.W.9, P.W.11, Inspector of
Police, Eraniel Police Station and also in-charge of Colachel Circle, went to
the scene of occurrence at 3.30 p.m. on 14.01.1986. He prepared, Ex.P2,
observation mahazar and Ex.P.13, rough sketch, in the presence of P.W.4 and
another. He caused the photographs of the body of the deceased to be taken
through P.W.10, photographer. Ex.P12 series are the photos and their negatives.
In the presence of the same witnesses, P.W.11 recovered bloodstained earth
(M.O.8) and sample earth (M.O.9) under Ex.P3, mahazar attested by the same
witnesses. He also conducted inquest over the body of the deceased from 4.15
p.m. to 6.00 p.m. on 14.01.1986, in the presence of panchayatars and prepared
Ex.P14, inquest report. Thereafter, the body was sent through a Police
Constable for postmortem with Ex.P9, requisition to conduct postmortem. He
examined the witnesses and recorded their statements.
3.6. In the meanwhile, P.W.7, Dr.Kutralingam, Chief Medical Officer,
Government Headquarters Hospital, Nagercoil, treated P.W.1 at 4.45 p.m. on
14.01.1986 and found an incised wound over posterior aspect of upper 1/3 left
arm. He issued Ex.P8, wound certificate, with an opinion that the said injury
is simple in nature.
3.7. P.W.11 went to Government Hospital, Nagercoil, at 10.00 p.m. on
14.01.1986 and examined P.W.1 and recovered bloodstained clothes (M.Os.2 and 3)
under a mahazar, Ex.P15, in the presence of witnesses.
3.8. P.W.8, Doctor Rani Enoch, Civil Surgeon attached to Government
Hospital, Kuzhithurai, conducted autopsy over the body of the deceased at 11.40
a.m. on 15.01.1986. As per the postmortem certificate, Ex.P10, there was an
incised slightly oblique transverse wound of about 7″ x 2″ x 4″ tapping at both
ends on the right side of the neck starting from 2″ lateral to mandible 2″ below
the right ear running backwards upto 2″ left to the mid line at the back atlanto
occipital joint completely broken transversely and spinal cord cut transversely
into two and all blood vessels and muscles underneath cut. P.W.8 opined that the
death would have caused due to complete separation of spinal cord transversely
at the atlanto occipital region.
3.9. P.W.11 recovered personal apparels (M.Os.4 to 7) found on the body of
the deceased under Form 95 produced by the constable, who was present at the
time of post-mortem. P.W.11 arrested the appellant on 15.01.1986 at 4.00 p.m. at
Amsi on Thengapattanam Road. The appellant voluntarily gave a confession
statement in the presence of P.W.5 and another. Ex.P4 is the admissible portion
of the statement, pursuant to which, a palai aruval (M.O.1) was recovered under
a mahazar, Ex.P5, attested by the same witnesses.
3.10. As the appellant was found with injuries on his person, P.W.11 sent
him to the hospital for treatment on 16.01.1986. Dr.Kumaran, Assistant Surgeon,
Government Dispensary, Thengapattanam, attended the appellant and found an
irregular small contused abrasion over the upper and outer quadrant of the
occipital bone on the scalp on the left side. The said Doctor issued an
accident register, Ex.P16. The injuries noted on the appellant are simple in
nature according to Dr.Kumaran, who was, of course, not examined.
3.11. P.W.11 thereafter remanded the appellant to judicial custody.
P.W.11 has given a requisition (Ex.P6) to the Chief Judicial Magistrate,
Nagercoil, for recording statement under Section 164 Cr.P.C. from the appellant.
3.12. P.W.6, Thiru.Jayakumaran, Judicial Magistrate, Eraniel, recorded a
judicial confession statement under Section 164 Cr.P.C. from the appellant after
following the requirements of Section 164 Cr.P.C. The said judicial confession
statement is Ex.P7.
3.13. On 18.01.1986, P.W.11 sent material objects with a requisition,
Ex.P17, to the Court to subject them for chemical analysis and the same were
sent to the laboratory under covering letters Exs.P18 and P19. Chemical
Analyst’s Report, Ex.P20 and Serologist’s Report, Ex.P21, were received from the
laboratory.
3.14. P.W.12, Inspector of Police, Colachel Circle, took up further
investigation and filed the charge sheet against the appellant under Sections
324 and 302 I.P.C. on 29.4.86.
4.1. Before the Sessions Court, on behalf of the prosecution, P.Ws.1 to 12
were examined as witnesses and Exhibits P1 to P21 and material objects M.Os.1 to
9 were marked.
4.2. The appellant was questioned under Section 313 Cr.P.C. in respect of
the incriminating circumstances appearing against him, but his defence was a
complete denial. The accused neither examined any witness nor marked any
document on his side.
5. On consideration of the oral and documentary evidence available on
record, the learned Sessions Judge convicted and sentenced the appellant as
referred to earlier. Hence, the appeal.
6. Learned counsel for the appellant advanced his argument only for
modification of the conviction and sentence. Elaborating his contention,
relying on the judicial confession statement of the appellant/accused, Ex.P7,
recorded under Section 164 Cr.P.C. by P.W.6, Judicial Magistrate, the learned
counsel submits that the appellant, who was in a drunken mood, attacked the
deceased in a sudden quarrel that took place between him and P.W.1 and when the
deceased intervened, he, in the heat of passion and at the spur of the moment,
not liking the intervention of the deceased, attacked the deceased, which
resulted in her death and therefore, the appellant is entitled to the benefit of
Exception 4 to Section 300 I.P.C.
7. Per contra, learned Additional Public Prosecutor submits that the
prosecution has proved its case with the overwhelming evidence of P.Ws.1 to 3.
Further, there is no quarrel between the deceased and the appellant and
therefore, the question that the act of the appellant would attract Exception 4
to Section 300 I.P.C. does not arise.
8. We have given our careful consideration to the submissions of both
sides in the light of the evidence available on record and the materials placed
before us.
9. Since the learned counsel for the appellant is not seriously disputing
the presence of P.W.1, mother of the deceased and also the injured eye witness,
as well as the presence of P.W.2, sister of the deceased and P.W.3, a neighbour,
whose evidence corroborates with each other as to the entire scene of
occurrence, and the participation of the appellant and his overt act in the
commission of offence, the only point which remains for our consideration is
whether the appellant is entitled to the benefit of Exception 4 to Section 300
I.P.C., as claimed by the learned counsel for the appellant and consequently,
whether the appellant is entitled to any modification of conviction and sentence
imposed on him, as pleaded on behalf of the appellant, referred to earlier.
10. It is not in dispute that one Selvi, aged about 21 years, was done to
death. The prosecution has proved its case that the deceased died due to
homicidal violence through the evidence of P.W.8, coupled with Ex.P-10
postmortem certificate. Further, it is the categorical evidence of P.W.1, the
injured eye-witness and the evidence of P.Ws.2 and 3, who are also eye-witnesses
to the occurrence, that the appellant after attacking P.W.1 with M.O.1, palai
aruval and causing injury on her, attacked the deceased with the same weapon and
caused her death. However, the defence taken by the appellant is that he
attacked the deceased in a sudden quarrel when he was in the drunken mood.
Therefore, it is clear that it is the appellant who attacked the deceased, which
later proved to be fatal.
11.1. The core contentions of the learned counsel for the appellant are:
(i) that the appellant was in a drunken mood;
(ii) that he attacked the deceased in a sudden quarrel that took place between
P.W.1 and himself;
(iii) that he attacked the deceased in the heat of passion and at the spur of
the moment, when the deceased intervened;
(iv) assuming he has the knowledge that the injuries inflicted on the deceased
with a deadly weapon would cause her death, he had no intention to cause the
death nor to inflict such injuries that would cause the death and hence, the
appellant is entitled to the benefit of Fourth Exception of Section 300 IPC; and
(v) in any event, the conviction of the appellant and the consequent sentence
imposed on him is entitled to be altered to one under Section 304 Part-II I.P.C.
11.2. We are unable to appreciate either of the above contentions in view
of the settled law on the point, with regard to the award of benefit of Fourth
Exception of Section 300 I.P.C., by the Supreme Court in DHIRAJBHAI GORAKHBHAI
NAYAK v. STATE OF GUJARAT [(2003) 9 SCC 322], which we respectfully reiterate as
follows:-
” 11. The fourth exception of Section 300 IPC covers acts done in a sudden
fight. The said Exception deals with a case of prosecution not covered by the
first exception, after which its place would have been more appropriate. The
Exception is founded upon the same principle, for in both there is absence of
premeditation. But, while in the case of Exception 1 there is total deprivation
of self=control, in case of Exception 4, there is only that heat of passion
which clouds men’s sober reason and urges them to deeds which they would not
otherwise do. There is provocation in Exception 4 as in Exception 1, but the
injury done is not the direct consequence of that provocation. In fact,
Exception 4 deals with cases in which notwithstanding that a blow may have been
struck, or some provocation given in the origin of the dispute or in whatever
way the quarrel may have originated, yet the subsequent conduct of both parties
puts them in respect of guilt upon an equal footing. A “sudden fight” implies
mutual provocation and blows on each side. The homicide committed is then
clearly not traceable to unilateral provocation, nor could in such cases the
whole blame be placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There is no previous
deliberation or determination to fight. A fight suddenly takes place, for which
both parties are more or less to be blamed. It may be that one of them starts
it, but if the other had not aggravated it by his own conduct it would not have
taken the serious turn it did. There is then mutual provocation and
aggravation, and it is difficult to apportion the share of blame which attaches
to each fighter. The help of Exception 4 can be invoked if death is caused (a)
without premeditation, (b) in a sudden fight, (c) without the offenders having
taken undue advantage or acted in a cruel or unusual manner, and (d) the fight
must have been with the person killed. To bring a case within Exception 4 all
the ingredients mentioned in it must be found. It is to be noted that the
“fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC. It
takes two to make a fight. Heat of passion requires that there must be no time
for the passions to cool down and in this case, the parties had worked
themselves into a fury on account of the verbal altercation in the beginning. A
fight is a combat between two and more persons whether with or without weapons.
It is not possible to enunciate any general rule as to what shall be deemed to
be a sudden quarrel. It is a question of fact and whether a quarrel is sudden
or not must necessarily depend upon the proved facts of each case. For the
application of Exception 4, it is not sufficient to show that there was a sudden
quarrel and there was no premeditation. It must further be shown that the
offender has not taken undue advantage or acted in a cruel or unusual manner.
The expression “undue advantage” as used in the provision means “unfair
advantage”.”
11.3. The above said ratio has also been followed in SACHCHEY LAL TIWARI
v. STATE OF U.P. [(2004) 11 SCC 410], whereunder the Supreme Court has further
held that for bringing in operation of Exception 4 to Section 300 IPC, it has to
be established that the act was committed without premeditation, in a sudden
fight in the heat of passion upon a sudden quarrel without the offender having
taken undue advantage and not having acted in a cruel or unusual manner.
11.4. Again, the Apex Court in BABULAL BHAGWAN KHANDARE v. STATE OF
MAHARASHTRA [(2005) 10 SCC 404], while dealing with the benefit of fourth
exception of Section 300 I.P.C., has held as follows:-
“19. Where the offender takes undue advantage or has acted in a cruel or unusual
manner, the benefit of Exception 4 cannot be given to him. If the weapon used or
the manner of attack by the assailant is out of all proportion, that
circumstance must be taken into consideration to decide whether undue advantage
has been taken. In Kikar Singh v. State of Rajasthan1 it was held that if the
accused used deadly weapons against the unarmed man and struck a blow on the
head it must be held that by using the blows with the knowledge that they were
likely to cause death he had taken undue advantage.”
11.5. In the light of the above mentioned legal principles, let us now
analyse the evidence on record:
(i) In the instant case, it cannot be said that there is no premeditation,
because there was a quarrel between P.W.1 and the appellant, ten days prior to
the occurrence, when P.W.1 questioned the appellant about his bad intention
while talking with the deceased, as spoken to by P.Ws.1 to 3. As P.W.1
informed about the bad conduct of the appellant to neighbours, the appellant
decided to do away P.W.1.
(ii) When the appellant came with a bad intention in order to outrage the
modesty of the deceased, ten days prior to the occurrence, P.W.1 has got every
justification to object to the conduct of the appellant by complaining it to the
neighbours and to oppose the visit of the appellant to her house and that of the
deceased, when there were no male members in the house. It is, therefore, clear
that neither P.W.1 nor the deceased were the aggressors, but the appellant
himself was the aggressor.
(iii) On the occurrence day, when the appellant attacked P.W.1, the deceased
intervened. By saying ‘you also die’, the appellant cut the deceased with a
palai aruval (M.O.1) (measuring 1 foot iron portion).
(iv) There was no fight between the deceased and the appellant.
(v) The appellant, taking undue advantage of the situation, had attacked the
deceased, who is a girl aged about 21 years at the time occurrence, with a
deadly weapon namely M.O.1, palai aruval, in a cruel manner.
(vi) It is to be noted at this stage that in the Indian setting, any attempt to
outrage the modesty of woman, either by words or by deeds, is considered to be
dehumanising and an act of unlawful intrusion on the right of privacy and
sanctity of a female. The want of physical injury is immaterial, as the
dignity, honour and reputation of the gender is at stake. It is for this
reason, P.W.1 had rightly objected the conduct of the appellant visiting the
house of the deceased with bad intention to outrage the modesty of the deceased
when there were no male members in the house. That apart, the accused also used
obscene words against the deceased as well as P.W.1.
(vii) In any event, it is apt to refer the nature of injury as found in Ex.P-10,
postmortem certificate.
“… incised slightly oblique transverse wound of about 7″ x 2″ x 4″ tapping at
both ends on the right side of the neck starting from 2″ lateral to mandible 2″
below the right ear running backwards upto 2″ left to the mid line at the back
atlanto occipital joint completely broken transversely and spinal card cut
transversely into two and all blood vessels and muscles underneath cut ….”
11.6. If the factual background of the case established by the materials
on record is tested with the legal principles indicated, the irresistible
conclusion is that the appellant is not entitled to the benefit of Exception 4
to Section 300 IPC, as argued by the learned counsel for the appellant.
12. Resultantly, finding no reason to interfere with the well considered
judgment of the trial Court, we sustain the conviction and sentence imposed on
the appellant. Accordingly, the appeal fails and the same is dismissed.
ATR
Copies to:
1. The Principal Sessions Judge,
Kanyakumari District at Nagercoil.
2. The Inspector of Police,
Colachel Circle,
Pudukadai Police Station,
Kanyakumari District.
3. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.