IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 28/12/2004
Coram
The Honourable Mr. Justice N. DHINAKAR
and
The Honourable Mr. Justice N.KANNADASAN
Crl. Appeal No.647 of 1996
Vellai Thurai ... Appellant
-Vs-
State, rep. by Inspector of Police
Tondiarpet Police Station ... Respondent
Appeal under Sec.374 of Crl.P.C. against the conviction and sentence
imposed upon the appellant by the learned Principal
Sessions Judge, Chennai in S.C.No.163 of 1996 dt.19-8-1996.
For Appellant :: Mr. John Sathyan
For Respondent :: Mr. V.M. Rajendran
Addl. Public Prosecutor
:JUDGMENT
(Delivered by N. DHINAKAR, J.)
Accused No.1 in S.C. No.163 of 1996 on the file of Principal
Sessions Judge, Chennai is the appellant. He was tried along with another
accused, who was arrayed as A-2, and the allegation against them is that at
about 11.30 p.m. on 24-4-1995, the appellant and A-2, who was acquitted by
the trial court, went to the tea-stall of the deceased and asked the deceased,
who was taking his food inside the tea-stall, for some water and since the
water was not given immediately, the appellant kicked the food-plate from
which the deceased was taking his food and stabbed him. The learned trial
Judge, finding the appellant guilty under Sec.302 IPC, sentenced him to life
imprisonment while he acquitted A-2 under Sec.302 IPC read with Sec.34 as well
as Sec.341 IPC. The appellant as well as A-2 were acquitted under Sec.506(ii)
IPC. The appellant challenges his conviction and sentence.
2. The case of the prosecution is as follows:
Radhakrishnan (deceased) was the owner of a tea-stall and Prakash (
PW-1) was employed under him in the said tea-stall. Velayutha Nair ( PW-2) is
the father of the deceased. At about 11.30 p.m. on 24-4-1995, the deceased,
PW-1 and PW-2, Chandran and others were in the teastall having their food. At
that time, the appellant, who came there on a cycle-rickshaw along with A-2,
asked the deceased for some water. The deceased in turn asked Chandran to
bring water for the appellant but Chandran took some time in bringing the
water. The appellant got angry since the water was not supplied immediately
and started shouting. The deceased asked him not to shout as the water had to
be pumped out and brought. The appellant not satisfied with the answer of the
deceased, kicked the food-plate from which the deceased was taking his food
and started trampling him. When the deceased attempted to run inside the
tea-stall, he was caught hold of by A-2 and the appellant stabbed him on the
chest. When PW-1 and PW-2 tried to apprehend the appellant and A-2, the
appellant threatened them with knife and ran away from the place with the
cycle-rickshaw.
PW-1 and PW-2 took the injured Radhakrishnan to the Stanley Medical
College Hospital and produced him before PW-3 who, on examining the injured,
pronounced him dead. Ex.P-2 is the copy of the accident register. PW-3
thereafter sent the intimation to the Tondiarpet Police Station.
On receipt of intimation, the Inspector of Police (PW-9) reached the
Stanley Medical College Hospital and finding PW-1 there, questioned him. PW-1
gave a statement regarding the incident. The statement was reduced into
writing. PW-9 returned to the police station on the complaint (Ex.P-1) given
by PW-1, registered a case in Crime No.301 of 1995 against the appellant and
A-2 under Secs.341 and 302 IPC by preparing the printed First Information
Report. Ex.P-12 is the copy of the printed F.I.R.
PW-9 took up investigation and reached the scene of occurrence at
about 4.15 a.m. , prepared the observation mahazar (Ex.P-6) and drew a rough
sketch (Ex.P-13) in presence of the witnesses. He seized blood-stained
tar-portion under a mahazar. He questioned the witnesses and recorded their
statements. He then proceeded to the Stanley Medical College Hospital and
examined the Doctor, who examined the deceased. He sent requisition to the
panchayatars for conducting inquest and after arrival of the panchayatars,
inquest was conducted between 7.00 a.m. and 9.00 a.m. Ex.P-14 is the inquest
report. He sent the body of the deceased with a requisition (Ex.P-3) for
conducting autopsy.
Dr. Thangaraj (PW-4), Additional Professor, Forensic Medicines,
attached to the Stanley Medical College Hospital,
on receipt of Ex.P-3, requisition, conducted autopsy over the deadbody of the
deceased and noted the following injuries:
“An oblique stab injury 4 X 1 cms on front of left side of chest 4 cms
away from midline and 21 cms below the left mid-clavicular. On dissection
there is an oblique cut 4 cms. long involving sixth intercostal muscle. …
Bruising of retro-sternal tissues to an extent of 10 x5x0.5 cms seen. On
further dissection there is an oblique cut over the anterior wall of the
pericardium to a length of 2.5 cms … On further dissection there is an
oblique cut over the antereo-inferior wall of the right ventricle to a length
of 1.5 cms to its full thickness communicating with the right ventricular
chamber with bruising of tissues of the heart along the lower border of the
cut to an extent of 2×0.5×0.2 cms. The depth of the wound is 12 cms and
direction of the wound is upward and backwards.”
PW-4 was of the opinion that the deceased would appear to have died of shock
and haemorrhage due to stab injury to the heart. Ex.P-14 is the post-mortem
certificate.
PW-9 questioned some witnesses and recorded their statements. He
searched for the accused and on the information received, he proceeded to the
junction of Suriyanarayana Chetty Street and Jeevarathinam Road and arrested
them at about 6.00 p.m. on 25-4-1995 in the presence of witnesses. The
appellant gave a statement and in pursuance of the admissible portion thereof
(Ex.P.10), he took the police party to his house and produced blood-stained
knife and blood-stained shirt (M.O.6), which were seized under a mahazar
Ex.P-11. Accused were brought to the police station and locked-up. On the
next day, they were sent to court for remand. The material objects were
forwarded to the court with a requisition to send them for chemical analysis.
After the completion of investigation, final report was filed against the
appellant and A-2 on 25-9-1995.
When the appellant and A-2 were questioned under Sec.313 Crl.P.C.
regarding the incriminating circumstances appearing against them, they denied
the same and pleaded not guilty.
The learned trial Judge accepted the prosecution case and held that a
case under Sec.302 IPC is made out against the appellant and accordingly
convicted the appellant and sentenced him to undergo imprisonment for life.
2. The cause of death of Radhakrishnan is not disputed by the
defence and the same stands established through the evidence of PW-4, who
conducted autopsy and issued post-mortem certificate (Ex.P-14). The cause of
death was stated to be shock and haemorrhage on account of the stab injury and
the corresponding internal injury to the vital organs of the body. This
injury, in the opinion of PW-4, was sufficient in the ordinary course of
nature to cause death. On the medical evidence, we therefore hold that
Radhakrishnan had died on account of homicidal violence. This takes us to the
next question whether the learned trial Judge was correct in convicting the
appellant under Sec.3 02 IPC and sentencing him to life imprisonment.
3. Learned counsel for the appellant made two contentions,
viz.
(i) That even if the entire facts as projected by the prosecution are
taken to be true, from the facts and circumstances of the case and the
evidence available on record, it could be said that the appellant could not
have intended to cause the death of the deceased as he had no motive or prior
enmity against the deceased and the occurrence having taken place without
premeditation in the heat of passion upon a sudden quarrel, he may be given
the benefit of ‘Exception 4’ to Sec.3 00 IPC.
(ii) The appellant, in the course of sudden quarrel, gave only one
blow with the knife, which accidently landed on the vital part, viz. chest of
the deceased, which proved fatal and, in these circumstances, this being a
case of ‘single stab injury’, the appellant may be given the benefit of
‘Exception 4’ to Sec.300.
In support of his contentions, learned counsel relied on the judgment of the
Supreme Court in THOLAN v. STATE OF TAMIL NADU (1984 SCC [ Cri.] 164).
4. On these contentions, we have heard the learned Additional
Public Prosecutor.
5. PW-1 and PW-2 were examined by the prosecution as the
eyewitnesses to the occurrence. It is the evidence of PW-1, who was employed
under the deceased, that at about 11.30 p.m. on 24-4-1995, himself, PW-2, the
deceased and others were having their food and at that time, the appellant and
A-2, who came on cycle-rickshaw to the tea-stall, asked the deceased for some
water. The deceased in turn asked Chandran to bring water and on seeing that
water was not supplied immediately, the appellant started shouting and kicked
the foot-plate of the deceased and trampled him to the ground. Sensing the
belligrent mood of the appellant, the deceased tried to run inside the
tea-stall but he was caught hold of by A-2 and the appellant stabbed him on
the chest. When PW-1 and others tried to apprehend the appellant and A-2,
they were threatned with knife-point and the appellant and A-2 ran away from
the scene. Immediately the injured was taken to the hospital where, on
examination by the Doctor, he was pronounced dead. A complaint was given by
PW-1 to PW-9 Inspector of Police, who reached the hospital on receipt of the
information. Similar is the evidence of PW-2.
6. On going the evidence of PW-1 and PW-2, we find no
infirmity in the evidence of both the eye-witnesses. The testimony of both
the witnesses are reliable and trustworthy and, therefore, can safely be
relied upon. It is not in dispute that PW-1 is the employee of the deceased
and PW-2 is deceased’s father and, therefore, their presence in the tea-stall
at the time of occurrence is natural. We, therefore, accept the evidence of
PW-1 and PW-2 and hold that it was the appellant who stabbed the deceased.
7. Now let us deal with the contentions raised by the learned
counsel for the appellant that the appellant is entitled to the benefit of
‘Exception 4’ to Sec.300 since firstly, the appellant did not intend to cause
the death of the deceased as the incident took place in the course of a sudden
quarrel and secondly, that this is a case of ‘ solitary stab injury’.
Considering the facts and circumstances of the case, we find it difficult to
countenance the contentions raised by the learned counsel. Here is a case
where the deceased, his father and his employees, after closing down their
tea-stall around 11.30 p.m., were having their food in the tea-stall and at
that time the appellant and A-2 came there and asked the deceased for some
water. The deceased asked his employee Chandran to get some water and since
there was delay in bringing the water, the appellant in a belligerent mood
started shouting at the deceased, kicked the food-plate from which the
deceased was taking his food, trampled him to the ground and when he tried to
run away, stabed him on the chest. In the above scenario, we cannot accept
the contention of the learned counsel that the incident occurred without any
premeditation in the heat of passion upon a ‘sudden quarrel’. We therefore
hold that the appellant is not entitled to the benefit of ‘Exception 4’ to
Sec.300 IPC.
8. Now, let us analyse the Tholan case, cited supra, relied
upon by the learned counsel for the appellant. After having carefully perused
the judgment, we are of the opinion that the said decision will not apply to
the facts and circumstances of the present case. In Tholan case, the learned
Judges, taking the facts and circumstances therein, were satisfied that the
appellant therein wielded a weapon like a knife and therefore he could be
attributed with the knowledge that he was likely to cause an injury which was
likely to cause death and in such a situation, he would be guilty of
committing an offence under Section 304 Part II IPC. The decision in the said
was rendered on the facts and circumstances therein and that the Supreme Court
did not lay down any law that in cases where there is single injury, the
accused is entitled to the benefit of ‘Exception 4’ to Sec.300 IPC
irrespective of the other circumstances. The judgment relied upon by the
learned counsel is, therefore, of no assistance and will not go to the rescue
of the appellant.
9. In this connection, we may refer to the decision of the
Supreme Court in STATE OF KARNATAKA v. VEDANAYAGAM (1995) 1 SCC 326 wherein
the question that arose for consideration was whether the High Court was right
in holding that whenever there is single injury the offence would be only
culpable homicide though the medical evidence is to the effect that the same
is necessarily fatal and sufficient in the ordinary course of nature to cause
death. In this case, the accused gave a knife blow on the left chest of the
deceased as a result of which the deceased fell down and died. The trial
court convicted the accused under Sec.302 IPC and sentenced him to life
imprisonment but, on appeal, the High Court, relying on the decision in Tholan
case, cited supra, held that the offence would come down to Sec.304 Part II
IPC. The finding of the High Court was challenged before the Supreme Court.
The Supreme Court after elaborately considering the decisions in Visra Singh
v. State of Punjab (AIR 1958 SC 465) and Jagrup Singh v. State of Haryana
(1981) 3 SCC 616, distinguished the decision in Tholan case, cited supra, and
held as follows:
“Thus it is clear that ingredient of clause 3rdly is not the intention to
cause death but on the other hand the ingredient to be proved is the intention
to cause the particularly injury that was present. It is fallacious to
contend that wherever there is a single injury only a case of culpable
homicide is made out irrespective of other circumstances. … there is no
legal basis whatsoever for the High Court to hold that since the
respondent-accused gave only one blow, though found to be sufficient in the
ordinary course of nature to cause death, clause 3rdly of Section 300 is not
attracted. … It is important to note that there was neither a quarrel nor
a fight between the deceased and the accused. The words uttered by the
accused against the deceased followed by stabbing with the dagger on the left
side of the chest of the deceased, would clearly indicate that he intended to
cause that particularly injury which was objectively found to be sufficient in
the ordinary course of nature to cause death. … there is no doubt
whatsoever that the accused intended to cause that particular injury on the
chest which necessarily proved fatal. Therefore clause 3 rdly of Section 300
IPC is clearly attracted. The High Court erred in holding that ‘the accused
did not intend to cause his death by inflicting the injury on the chest
because there was no premeditation and therefore the offence would be culpable
homicide. This view of the High Court is not correct and as discussed above
clause 3rdly of Section 300 IPC is clearly attracted. For all these reasons,
we set aside the judgment of the High Court and restore the judgment of the
trial court convicting the accused under Sec.302 IPC and sentencing him to
undergo imprisonment for life.”
10. In HUKAM CHAND v. STATE OF HARYANA (2002) 8 SCC 421,
where the deceased died due to infliction of single blow on vital part of the
body by the appellant (accused), the Supreme Court rejected the plea for
conversion of conviction to that under Sec.304 Part I instead of Sec.302 IPC
and justified the conviction und er Sec.302 IPC.
11. In STATE OF U.P. v. PREMI AND OTHERS (2003) 9 SCC 12,
the Supreme Court, while rejecting the contention that the respondents (
accused) had no intention to kill and that only a single blow was inflicted on
the head of the deceased and, therefore, their conviction deserves to be
altered to be one falling under Sec.304 IPC, observed as follows:
“The mere fact that only a single blow was inflicted on the head by itself is
not enough to alter the conviction from Section 302 to Section 304 IPC”
10. The facts in the present case are identical to the one in
Vedanayagam case, cited supra. In the present case, as narrated above, the
appellant, on a trivial issue of not supplying water immediately, after
shouting at the deceased, stabbed him on the vital organ of the body in a
cruel and unusual manner. Of course, the appellant came to the tea-stall not
with the intention to cause the death of the deceased but, the subsequent
criminal act of the appellant in shouting against the deceased and stabbing
him on the chest with the knife would clearly indicate that he intended to
cause that particularly injury which was objectively found to be sufficient in
the ordinary course of nature to cause death. The intention to cause that
particular bodily injury can be gathered from the kind of weapon used, the
part of the body aimed at, the amount of force employed and the gravity of the
injury suffered. There is sufficient medical evidence on record to show that
the injury inflicted was sufficient in the ordinary course of nature to cause
death. Therefore, we are of the clear opinion that the appellant is liable to
be convicted under Sec.302 IPC and was rightly done so by the learned trial
Judge.
11. We do not find any merit in the appeal. The appeal
deserves to be dismissed and, accordingly, it is dismissed.
Index:Yes
Internet: Yes
Jai
To:
1. The Principal Sessions Judge, Madras
2. The District Collector, Madras
3. The Director General of Police, Chennai
4. The Public Prosecutor, Madras
5. The Superintendent, Central Prison, Chennai