Madras High Court
Kannan vs The Inspector Of Police on 27 August, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27.08.2015 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE V.S.RAVI CRIMINAL APPEAL (MD).No. 366 of 2009 Kannan : Appellant Vs. The Inspector of Police C1 Othakadai Police Station Madurai District. in Crime No.105 of 2007 :Respondent PRAYER: Appeal is filed under Section 374(2) of the Code of Criminal Procedure against the judgment passed by the Principal Sessions Judge, Madurai, in S.C.No.227 of 2007 dated 20.11.2008. !For Appellant : Mr.N.Ananthapadmanaban ^For Respondent : Mr.A.Ramar Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by S.NAGAMUTHU, J.) The appellant is the sole accused in S.C.No.227 of 2007 on the file of the Principal Sessions Judge, Madurai. He stood charged for offences under Section 302 IPC. By judgment dated 20.11.2008, the trial Court found him guilty under Section 302 IPC and convicted him and sentenced him to undergo rigorous imprisonment for life, and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for six months. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
The deceased was one Mr.Senthilkumar. He was a Driver in a lorry by profession. For quite some time, the accused was working along with the deceased as a Cleaner in the same lorry. Thus, they were known to each other. On 03.03.2007, in the occurrence village, Maasi festival was celebrated by the villagers. P.W.1's husband Mr.Kannan was in the festival participating in the same. The accused was also standing in the crowd witnessing the festival. At that time, P.W.1's husband took a sum of Rs.10/- from the pocket of the accused. This, according to the prosecution, was done by Mr.Kannan only for fun. But the accused did not take it so. He took it very seriously and scolded the husband of P.W.1. Therefore, the husband of P.W.1 returned the said amount and kept in the pocket of the accused. At that time, the deceased Senthilkumar, who is the brother of P.W.1 and brother-in-law of Mr.Kannan and others were also present. Mr.Senthilkumar questioned the accused as to why he used such abusive language against his brother-in-law Mr.Kannan. This resulted in a quarrel. They scuffled with each other. The people, who were present separated them and pacified them. The deceased and Mr.Kannan returned to the house of P.W.1 and narrated the event to her. Thereafter the deceased left for some other work. The deceased went to Mandhai Savadi. After some time, while P.W.1 was at her house, she heard a hue and cry from Mandhaisavadi. Immediately, she along with P.W.2 rushed to the mandhaisavadi. There she found that the accused and the deceased were fighting with each other. P.Ws.1 and 2 shouted at the accused not to do any harm to the deceased. But the accused took out a knife from his waist and stabbed the deceased once on his back. The deceased fell down. The accused ran away from the scene of occurrence. The occurrence took place at 03.15 p.m. Within a short time, the deceased breathed his last. Thus, P.W.1 went to the Othakadai Police Station and made a complaint at 4.00 p.m. 2.1. P.W.12 the then Sub Inspector of Police, Othakadai Police Station on receipt of the said complaint (Ex.P1) registered a case in Crime No.105 of 2007 under Sections 341 and 302 IPC. Ex.P13 is the FIR. He forwarded Exs.P1 and P.13 to the Court and handed over the case diary to P.W.13 for investigation.
2.2. P.W.13 took up the case for investigation at 4.45 p.m. on 03.03.2007. He proceeded to the place of occurrence, prepared an observation mahazar and a rough sketch at the place of occurrence in the presence of P.W.6 and another witness. He also recovered bloodstained earth (M.O.2) and sample earth (M.O.3) and a pair of chappals (M.O.4) from the place of occurrence. On the same day, at 6.00 p.m., he conducted inquest on the body of the deceased and prepared Ex.P15 report. Then, he forwarded the body for postmortem.
2.3. P.W.8 ? Dr.Natarajan conducted autopsy on the body of the deceased at 11.15 p.m. on 04.03.2007. He found the following injuries:
1.An oblique stab injury measuring 3 x 1 cms x pleural cavity deep noted on the back of lower part of left side of chest 8 cms below the inferior angle of scapula, 10 cms lateral to midline.
On dissection, the wound passes obliquely forwards and medially piercing the underlying muscles, vessels and nerves in the 9th intercostal space and piercing the underlying pleura and lower lobe of left lung measuring 2 x 1 x 1 cms and ends as a point. Left pleural cavity contains 800 ml of blood with clots. Right pleural cavity empty.
He opined that the said injury would have been caused by a weapon like M.O.1 ? knife. He further opined that the death would have appear to have caused by shock and hemorrhage due to external injury No.1 and its corresponding internal injuries.
2.4. Continuing the investigation, P.W.13 recovered the dress materials found on the dead body. In the course of investigation, on 05.03.2007, P.W.13 arrested the accused at 6.00 a.m. at Narasingam village in the presence of P.W.9 and another witness. On such arrest, he gave a voluntary confession, in which, he disclosed the place, where he had thrown the knife. Ex.P6 is the disclosure statement. In pursuance of the same, he took the witnesses to the said place and produced M.O.7 ? a shirt M.O.6 ? a lungi and M.O.1 ? knife. All were recovered under a mahazar. On returning to the police station, P.W.13 forwarded the accused for judicial remand and handed over the material objects to the Court. He made a request to the Court for sending the material objects for chemical examination. The report of the analyst revealed that there was human blood on all the material objects including knife. But grouping of the blood on the knife was inconclusive. On completing the investigation, P.W.13 filed final report.
2.5. Based on the above materials, the trial Court framed a loan charge under Section 302 IPC, which the accused denied. To prove the said charge, on the side of the prosecution, as many as 13 witnesses were examined. 15 documents and 11 material objects are exhibited.
2.6. Out of the said witnesses, P.Ws.1 to 3 are the eye witnesses. P.W.2 is the aunt of P.W.1. P.Ws.1 and 2 have stated about the fact that they rushed to the place of occurrence on hearing the hue and cry from the savadi, where she found the accused and the deceased fighting with each other and finally the accused stabbed the deceased once on the back of chest. P.W.3 is running a tea shop near the place of occurrence. He has stated that when he was in the tea shop, busy with his business, he heard hue and cry from the place of occurrence and when he came out of the shop and rushed the place of occurrence, he found the accused once stabbing the deceased on his back of chest. Thus, P.Ws.1 to 3 are the eye witnesses to the occurrence. P.W.4 has spoken about the previous occurrence, in which, the accused and the husband of P.W.1 and the deceased were involved. P.W.5 has not stated anything incriminating, as he has spoken only on hear say information. P.W.6 has spoken about the observation mahazar prepared. P.W.7 ? Dr.Ganesan states that he received the dead body and kept the same in the mortuary. P.W.8 ? Dr.Natarajan has spoken about the postmortem conducted and final opinion regarding the cause of death. P.W.9 has spoken about the arrest of the accused, disclosure statement made by him and the consequential discovery of M.O.1 ? knife and a shirt M.O.7, lungi M.O.6. P.W.10 ? Head Constable has spoken about the fact that he carried the express FIR to the Court from the police station. P.W.11 ? Head Clerk of the Court has spoken about the fact that he forwarded the material objects for chemical examination. P.W.12 has spoken about the registration of the case and P.W.13 about the investigation done by him.
2.7. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witnesses on his side nor marked any documents. Having considered all the above, the trial Court convicted him under Section 302 IPC and accordingly punished him. That is how, he is before this Court with this appeal.
8. We have heard the learned counsel for the appellant, the learned Additional Public Prosecutor for the respondent and we have also perused the records carefully.
9. The learned counsel for the appellant would submit that the origin of the occurrence has not been proved by the prosecution, because P.Ws.1 to 3 had not seen the occurrence in its entirety. According to them, after they heard the hue and cry from the savadi, they rushed to the place of occurrence and when they reached the place of occurrence, they saw fight going on between the accused and the deceased and thus, the accused stabbed the deceased. The learned counsel for the appellant would submit the house of P.W.1 and 2, is at a far off place and therefore, it is too difficult to believe that they would have seen the occurrence, in the light of the fact that they heard the hue and cry from manthai, when they were at their house. He would further submit that so far as P.W.3 is concerned, he would state that he was very busy in his Tea Shop attending business. He has also stated that only after hearing the hue and cry, after P.Ws.1 and 2 reached the occurrence, he came out of the shop. Thus, according to him, P.W.3 would not have seen the occurrence. The learned counsel would submit that so far as the recovery of knife is concerned, the accused has identified the same cannot be believed. Thus, according to the learned counsel, the prosecution has failed to prove the case beyond reasonable doubts.
10. But the learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, P.Ws.1 to 3 have spoken about the entire occurrence in a cogent manner and there is no reason to reject their evidence. He would, however, submit that medical evidence duly corroborate the eye witness account. The recovery of M.O.1 at the instance of the accused also lends assurance to the case of the prosecution. Thus, according to him, the prosecution has proved the case beyond reasonable doubts.
11. We have considered the above submissions.
12. Regarding the previous occurrence, which took place some time before the occurrence, there cannot be any dispute. That occurrence was not a premeditated one. That was invited only by the husband of P.W.1, in which, he took the money from the pocket of the accused without his knowledge. Quite naturally, the accused protested and used some abusive language. This is stated to be the motive.
13. After this incident, the husband of P.W.1 and the deceased had returned to the house. They narrated the same to P.W.1. Then, the deceased alone went out saying that he was proceeding to the mandhai savadi. It is well known already that in mandhai, the accused was very much available, because the earlier occurrence was only in mandhai. The distance between the house of P.Ws.1 and 2 and the manthai is about 100 metres, as it is seen from the records.
14. P.Ws.1 and 2 have stated that they heard the hue and cry from mandhai. Then they rushed to the place of occurrence. Therefore, they would not have seen the entire occurrence. On reaching there, they found the accused and the deceased fighting physically with each other. In culmination of the same, the accused took out a knife and caused injury on the deceased by cutting him once on the back of his chest. Similarly, P.W.3 ? Tea Shop owner stated that he heard the hue and cry of the deceased and then only he came out of the shop and then, he found the accused stabbing the deceased. Thus, in our considered view, the presence of P.Ws.1 to 3 at the time when the accused stabbed the deceased cannot be doubted. Therefore, we have no reason to reject the evidence of P.Ws.1 to 3 to hold that it was this accused, who caused the injury on the deceased.
15. According to the Doctor, who has conducted autopsy, the death was due to the said external injury and the corresponding internal injuries alone. Thus, we find that the injury on the deceased was caused only by the accused and thus, he only caused the death of the deceased.
16. Now, the immediate next question is as to what is the offence, the accused has committed by the said act ?. As we have already pointed out, the accused and the husband of P.W.1 were co-workers in the lorry already. Therefore, they were known to each other. On the date of occurrence, there was a village festival going on. The accused participated in the same. The husband of the P.W.1 came there and he took a sum of Rs.10/- from the pocket of the accused without his knowledge. This resulted in a quarrel, in which, the deceased was also involved. Immediately, the people pacified them and separated them. After returning to the house, the deceased had no other work to go again to the place ie., mandhai, where the accused was very much available. From the evidence of P.Ws.1 to 3, what was the origin of the occurrence cannot even be inferred. But one thing is certain, ie., when P.Ws.1 and 2 were in their house, there heard the hue and cry in the mandhai, which means the fight had already started. Then only P.Ws.1 and 2 went there and thereafter only P.W.3 came out of his shop. Therefore, it is inferable that the deceased had gone to the place of occurrence again to wreck vengeance. It is quite possible that the deceased would have questioned the accused and quarreled and abused him, in which, the accused would have got provoked. Though, there is no direct evidence on this, going by the previous incident and the fact that the deceased went to the very same place of occurrence shortly after the first occurrence, this Court is impelled to presume under Section 114 of the Indian Evidence Act that the accused would have been provoked by the deceased and only in the said provocation, the accused had caused the single stab on the back of the deceased.
17. P.Ws.1, 2 and 3 have stated that when they saw the occurrence, there was physical fight going on between the accused and the deceased and they were rolling in the ground catching hold each other. Therefore, it is crystal clear that out of the said provocation, which, in our considered view, is grave enough and it was also sudden, the accused had made a single stab on the back of the chest of the deceased. Thus, his act would clearly fall within the first exception to Section 300 IPC. Since he had used a knife and caused an injury on the vital part, his act would fall within the 3rd limb of section 300 IPC. Since his act falls within the first exception to Section 300 IPC, the act of the accused is not culpable homicide amounting to murder, but it is only culpable homicide punishable under Section 304(i) IPC.
18. Now, turning to the quantum of punishment, so far as the aggravating circumstances are concerned, it was not a premeditated one, there was no motive and the injury caused on the deceased was one single stab, when there was exchange of blows going on between the accused and the deceased. Turning to the mitigating circumstances, at the time of occurrence, the accused was an young boy, who is aged hardly 21 years, a poor man eking his livelihood by working as a Cleaner, he has to look after his family, there are no bad antecedents, after the occurrence also, he has not committed any crime, having regard to all the above, with a view to afford an opportunity to reform him and by way of striking a balance between the aggravating and mitigating circumstances, we deem it appropriate to impose a sentence of rigorous imprisonment for five years and a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for four weeks.
19. In the result, the criminal appeal is partly allowed in the following terms:
(1) The conviction and sentence imposed on the accused/appellant under Section 302 IPC are set aside, instead, he is convicted for the offence under Section 304(i) IPC.
(2) He is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5000/- (Rupees five hundred only), in default, to undergo rigorous imprisonment for four weeks for the offence under Section 304(i) IPC. It is reported that the fine amount has already been paid.
(3) The period of sentence already undergone by the accused/appellant is ordered to be set off under Section 428 Cr.P.C.
To
1.The Principal Sessions Judge, Madurai
2.The Inspector of Police C1 Othakadai Police Station Madurai District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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