Madras High Court
Selvaraj vs State on 14 March, 2006
Author: P.D.Dinakaran
Bench: P.D.Dinakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14/03/2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU CRIMINAL APPEAL No.900 of 2002 1. Selvaraj S/o.Arunachalam 2. Sakthivel S/o.Arunachalam 3. Papathi W/o.Arunachalam ... Appellants vs. State, rep. by Inspector of Police, Kannivadi Police Station, Dindigul District. Crime No.230 of 1997 ... Respondent Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure against the judgment of the learned Principal Sessions Judge, Dindigul, dated 30.03.1999 in Sessions Case No.36 of 1998. !For Appellants ... Mr.Gopalakrishna Lakshmana Raju ^For Respondent ... Mr.K.Radhkrishnan, Additional Public Prosecutor. :JUDGMENT
(Judgment of the Court was delivered by P.D.DINAKARAN, J.) It is a case of double murder.
1.2 The appellants, who are accused Nos.1 to 3 in Sessions Case No.36 of 1998 on the file of the Principal Sessions Judge, Dindigul, have filed this appeal challenging the judgment, dated 30.03.1999, convicting them under Section 302 read with Section 34 I.P.C. (2 counts) and 307 I.P.C. (2 counts) and sentencing each of them to undergo life imprisonment for each count for the offence under Section 302 r/w 34 I.P.C. and seven years rigorous imprisonment for each count for the offence under Section 307 r/w 34 I.P.C.
2. The charge against the appellants is that on account of the prior enmity that existed between the appellants on the one hand and Rajamani (P.W.5) and Shanmugam (hereinafter referred to as 'Deceased No.1') on the other hand, on 21.05.1997 at 7.00 a.m. at the Dharmathupatti Kombai Garden Road, appellants 1 and 2 armed with an axe (M.O.1) and aruval (M.O.2), with an intention to cause the death of Deceased No.1, attacked him on his right ribs and right shoulder, which resulted in his instantaneous death and in the course of the same transaction, appellants 1 and 2 attacked Mariammal (hereinafter referred to as 'Deceased No.2') with M.O.2 aruval and M.O.1 axe on many parts of her body and A3 attacked Deceased No.2 with M.O.3 stick and in the course of the same transaction, appellants 1 to 3 attacked P.W.5 Rajamani and his wife P.W.1 Saroja with M.O.2 aruval and M.O.3 stick on many parts of the body by saying "get lost with this".
3. The brief facts of the prosecution case are as follows:
(a) P.W.1 Saroja is the wife of P.W.5 Rajamani. Shanmugam (Deceased No.1) is the brother of P.W.5 and Mariammal (Deceased No.2) is the wife of Deceased No.1 and sister of P.W.1. Accused Nos.1 and 2 are sons of A3 and A3 is the sister of P.W.5 and Deceased Shanmugam. P.Ws.1 and 5 and both the deceased were living separately near their field at Dharumathupatti. Accused were residing on the southern side of the pathway leading to their land. In front of both of their residences, there is one pathway. There was enmity between the deceased and the accused regarding the right over the pathway.
Accused used to pick up quarrels with the family of the deceased while they were using the pathway. Due to the enmity, both were not on talking terms. A3 made arrangements for the marriage of A1 and A2. Since the bride's parents wanted to consult the maternal uncles of A1 and A2, they approached P.W.5, who informed them that A1 and A2 are not of good character.
(b) On the fateful day, i.e. 21.05.1997 at 7.00 a.m. A1 and A2 damaged the manure bags kept in front of the house of the accused which belonged to the deceased and the same was questioned by Deceased No.1. There arose a quarrel between the accused and Deceased No.1. A1 cut Deceased No.1 with M.O.1 axe on his right shoulder. A2 cut Deceased No.1 with M.O.2 aruval indiscriminately on different parts of his body. A1 and A2 also cut Deceased No.2 with the same weapons indiscriminately. A3 beat Deceased Nos.1 and 2 with M.O.3 stick indiscriminately. A1 also cut P.W.5 with M.O.1 axe on hand, head, shoulder and back side, in which his left hand below the wrist was completely severed. A2 also cut P.W.5 with M.O.2 aruval. A1 and A2 also attacked P.W.1 with the same weapons on different parts of her body. A3 beat P.Ws.1 and P.W.5 with M.O.3 stick. Mother-in-law of P.W.1, Kaleeshwari and Magudeeswaran came to the spot and saw the occurrence. D1 died on the spot. P.W.1 went to the police station and lodged a complaint. Ex.P1 is the complaint given by her. Mr.Murugesan, Sub- Inspector of Police received Ex.P1 compliant and registered a case in Crime No.230 of 1997 under Sections 323, 307 and 302 I.P.C. and prepared Ex.P11 printed first information report and despatched the same to the Judicial Magistrate's Court as well as to the higher police officials through a Police Constable.
(c) P.Ws.1, 5 and Deceased No.2 were taken to Government Hospital, Dindigul. P.W.4 Dr.R.Vijayalakshmi, Assistant Surgeon, Government Headquarters Hospital, Dindigul, examined P.W.1 at 7.45 a.m. and found the following injuries on her.
1) Lacerated injury 4cm x 2cm x bone deep.
Left forearm (exposing the deeper structure).
2) Cut injury 10cm x 1cm x . over the vertex.
3) Cut injury 10cm x 4cm x bone deep (exposing the deep structure. Left shoulder.
X-rays of her skull and shoulder were taken by P.W.2 Dr.Subbiah, Radiologist. P.W.4 on examining M.O.4 series x-rays and the injuries found on P.W.1, issued Ex.P3 Accident Register, opining that injury no.1 is grievous in nature and injury nos.2 and 3 are simple in nature and no fracture was found.
(d) On the same day at 9.25 a.m. P.W.4 examined P.W.5 and found the following injuries on him:
1) Irregular cut injury involving Rt ear lobule (whole).
2) I shaped irregular cut injury 4cm x 4cm x 1cm over the Rt side face in front of ear.
3) Deep cut injury 10cm x 2cm x 2cm x bone deep Rt side back.
4) Left hand amputated at the wrist level exposing the left wrist.
5) Cut injury 6cm x 2cm x 2cm over the Rt side neck.
X-rays of his chest, left wrist and skull were taken by P.W.2. P.W.4, after analysing M.O.5 series x-rays, certified that injuries 1, 3 and 4 are grievous in nature and the second injury is simple in nature. She issued Ex.P4 Accident Register to that effect.
(e) P.W.7, the Investigating Officer, on receipt of Ex.P11 first information report from the Sub Inspector of Police, proceeded to the scene of occurrence and reached there by 1.30 p.m. on 21.05.1997. In the place of occurrence, he conducted inquest over the body of Deceased No.1 in the presence of panchayatdars and prepared Ex.P12 inquest report. He issued Ex.P13 requisition for conducting postmortem over the body of Deceased No.1. He examined the witnesses and recorded their statements. On receipt of information that Deceased No.2 breathed her last at 12.45 p.m. in the hospital, he proceeded to the Government Hospital, Dindigul, where in the presence of panchayatdars, he conducted inquest over the body of Deceased No.2 and prepared Ex.P14 inquest report. He also issued requisition to conduct postmortem over the body of Deceased No.2. He came back to the scene of occurrence and in the presence of P.W.6, Village Administrative Officer, Kannivadi village and another, prepared Ex.P6 observation mahazar and Ex.P15 rough sketch. In the presence of the same witnesses, he recovered M.O.6 bloodstained earth and M.O.7 sample earth under Ex.P7 mahazar attested by the same witnesses.
(f) P.W.3 Dr.B.Jeevan, Assistant Surgeon, Government Headquarters Hospital, Dindigul, conducted autopsy over the body of Deceased No.1 on 21.05.1997 at 4.45 p.m. and found the following injuries.
"1) Lacerated injury 8cm x 4cm x depth not measured overlying the Rt infraclavicular region 4cm below the collar bone. On opening, the injury passes 3cm deep and the third ribs found fractured underneath the injury. The underlying parietal pleura is injured. The right pleural cavity contain 150ml of clotted blood.
2) A lacerated injury over the Rt shoulder joint just above the insection of deltoid measuring 5x3x1cm. On opening the muscle and underlying structures are found cut and the humerus bones at the upper and third is found fractured horizontally. Clots around the structures seen.
3) A lacerated injury over the back of Rt. scapula 6 x 3 x 2cm.
4) A vertical incised wound 15 x 18 x muscle depth extending from the middle of lateral aspect of neck on the right side extending upto the middle o the collar bone Rt. side exposing and splitting the collar bone into two halves, the underlying muscles, vessels are cut exposing 4th 5th vertebra. Adherent clots seen on the surface of the injury.
5) An horizontal incised wound over the back of lower aspect of Rt arms 7 x 3 x 2 cm.
6) A curved incised wound 3cm x 2cm x 1cm overlying the web space and thenar eminence cutting the muscles of the thenar eminence and cutting partially the I metacarpal bone muscles are cut and vessels are injured. Adherent clots seen.
7) Lacerated wound 5cm above the pinna of the ear overlying the parietal region on the Rt. side measuring 6cm x 2cm x bone depth. On dissection of the scalp, the skull is found depressed and fractured into 6 pieces. On removal of the fragmented pieces clots are found. The dura mater is lacerated 6 x . x . cm sub-dural haematoma underneath the duramater present. On exposing the pia and arachnoid mater blood is suffused into the injured and surrounding brain tissues. Brain is lacerated measuring 4 x 1 x 1cm.
8) Lacerated injury 8 x 2 x bone depth over the palmor aspect of Rt. hand in between the Rt. little and ring finger extending upto the Rt. wrist joint.
9) An incised wound 2 x 1 x 1cm above the left thumb.
10) A lacerated injury over the left heel 2 x . x . cm.
11) Lacerated injury 2 x . x . cm over the medical aspect of middle of left foot.
12) Lacerated injury 15 x 7cm exposing the underlying muscles extending from the lateral aspect of upper III of left arm upto just above the left elbow joint.
13) A lacerated injury over the middle of right ear 1 x . x . cm.
He issued Ex.P2 postmortem certificate opining that the deceased would appear to have died of shock and haemorrhage due to the injuries and injury to the vital organ - brain.
(g) P.W.4 conducted autopsy over the body of Deceased No.2 on 22.05.1997 at 10.30 a.m. and found the following injuries:
1) Cut injury extending from the occipital region of the Rt side below the Rt ear present through the neck upto the middle of the mandible Rt exposing the deeper structures 15 cm x 2 cm x bone deep.
2) Cut injury 4cms x 2cms x bone deep over the middle of Rt side frontal region.
3) Deep cut injury medial side of left fore arm 10cm x 3cm x bone deep.
4) Cut injury 2 x . x . cm over the proximal phalanx of the left thumb.
5) Cut injury . x . x . cm over the distal phalnx of the left thumb.
6) Cut injury 5 x 2 x bone deep over the dorum of the Rt hand below the wrist on exploration wound No.1. Fracture of the Rt side occipital bone extending to the temporal bone of the left side. About 100 grm of clotted blood was present over the Rt side neck with injury to the muscles. Blood vessels of neck on the Rt side exploration of wound No.II; fracture of the frontal bone Rt side was present exposing the brain matter below membranes were torn.
She issued Ex.P5 postmortem certificate opining that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained and fatal injuries are neck and head injuries.
(h) P.W.7 continued his investigation. On 31.05.1997 at 10 p.m. he arrested A1 and A2 in the presence of P.W.6 and another. A1 and A2 voluntarily gave confession statements. Exs.P8 and P9 are the admissible portion of the statements of A1 and A2 respectively, pursuant to which, M.O.1 axe, M.O.2 aruval and M.O.3 stick were recovered under Ex.P10 mahazar attested by the same witnesses. A3 surrendered before the Judicial Magistrate's Court, Vedasandur. P.W.7 recovered M.Os.8 to 11 personal apparels found on the body of the deceased under Form 95 from the Postmortem Constable. The said Form 95 is Ex.P20.
(i) P.W.7 sent the material objects with Ex.P16 requisition to the Court to subject them for chemical analysis and the same were sent to the laboratory under Ex.P17 Court's letter. Exs.P18 and P19 are the Chemical Analysis Report and the Serologist Report respectively. He examined P.Ws.2 to 4 and recorded their statements. On completion of the investigation, he filed a final report on 15.09.1997 against all the accused for the offences punishable under Sections 302 and 307 r/w 34 I.P.C.
(j) On the date of occurrence i.e. 21.05.1997 at 8.15 a.m. a case was registered on the complaint lodged by A1, in Crime No.229 of 1997 for the offences punishable under Sections 323 and 324 I.P.C. P.W.7 investigated this case also along with the case in Crime No.230 of 1997 and after finding that it was the accused who committed the offence,he referred the case registered on the complaint of A1 i.e. Crime No.229 of 1997.
4. Before the Sessions Court, on behalf of the prosecution, P.Ws.1 to 7 were examined as witnesses and Exhibits P1 to P20 and material objects M.O.1 to M.O.11 were marked. The accused were questioned under Section 313 Cr.P.C. in respect of the incriminating circumstances appearing against them, but they denied everything. The accused did not examine any witness on their side, but marked Exs.D1 and D2 through P.W.4 Doctor, who has given evidence in cross that she examined A1 at 9.10 a.m. on 21.05.1997 and found the following injuries:
"1) Cut injury 4cm x 1cm x 1cm left elbow.
2) Irregular cut injury 6cm x 5cm x bone deep. Back of left forearm.
3) Contusion 4cm x 3cm occipital region.
4) Cut injury 3cm x . x . cm left side parietal region.
He was admitted as inpatient and x-ray of his left hand was taken. P.W.4, after analysing x-ray, certified that fracture on ulna left and injury no.2 is grievous in nature. She issued Ex.D1 Accident Register to that effect. P.W.4 examined A2 at 9.50 a.m. and found the following injuries:
"1) Cut injury 3cm x 2cm x bone deep above the Rt. wrist.
2) Cut injury 2cm x 1cm x . cm 1" above the Rt. wrist.
3) Cut injury 1cm x . cm x . cm dorsum of Rt. hand.
4) Cut injury 4 cm x 2cm x 1cm Rt loin.
5) Cut injury 5cm x 2cm x 1cm lat. side left wrist.
6) Cut injury 6cm x . x . left palm.
7) Cut injury 4cm x 2cm x 1 cm left parietal region."
He was also admitted as inpatient and x-rays of his left hand was taken. P.W.4, after analysing x-ray, certified that no fracture on his left hand and all the injuries are simple in nature. She issued Ex.D2 Accident Register to that effect.
5. On consideration of the oral and documentary evidence produced by both the sides, the learned Sessions Judge convicted and sentenced all the accused as referred to earlier.
6. The fact remains that two persons by name Shanmugam and Mariammal had been done to death. The medical evidence available in this case viz., in the form of oral evidence of P.Ws.3 and 4 and the postmortem certificates Exs.P2 and P5 clearly established that the death was due to homicidal violence and it is not disputed by the accused.
7.1 The core contention of the learned counsel for the appellants is that the death of the deceased is only culpable homicide not amounting to murder and by this, the learned counsel attempts to bring the act of the accused under exception 2 to Section 300 I.P.C., which reads as follows:
Exception 2: Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence."
7.2. We are unable to agree with the said submission. To attract the said exception, the following ingredients are to be satisfied:
(i) There shall be an exercise of right of private defence of a person or property in good faith.
(ii) Such exercise of private defence shall not exceed the power given to him by law and cause the death of a person against whom he is exercising such power.
(iii) Such right of private defence is without premeditation and it should be without any intention of doing more harm than is necessary for the purpose of such defence.
7.3 Assuming the deceased are the aggressors and the deceased had come to the place of the accused and thereby provoked the accused and in that process they exercised their private defence in good faith, the accused had however exceeded their power of private defence given to them by law and thereby caused the death of the deceased.
7.4. We are also unable to satisfy ourselves that the accused had no intention of doing more harm than was necessary for the exercise of such defence to bring home the offence under exception 2 of Section 300 I.P.C, in view of the grievous injuries found on the body of the victims, as spoken by P.Ws.1 and 5 corroborated by the medical evidence of P.Ws.3 and 4 in the form of oral and documentary. Causing injury in vital part uttering words that the deceased was to be put to death will fall under Section 302 and not under any of the exception to Section 300 I.P.C.
8.1 Alternatively, learned counsel for the appellants contends that the act of the accused is without premeditation, in a sudden fight, in a heat of passion upon a sudden quarrel without taking undue advantage, but not acted in a cruel and unusual manner and therefore, their act would fall under exception 4 to Section 300 I.P.C.
8.2 Again, we are unable to agree with the said contention, because even though the accused had acted without premeditation, in a sudden fight, in a heat of passion and upon a sudden quarrel, in view of the grievous injuries found on the body of the deceased as spoken to by P.Ws.1 and 5 and corroborated by the medical evidence, it could not be said that the accused had not acted in a cruel or unusual manner. In State of Rajasthan vs. Dhool Singh AIR 2004 SC 1264, it has been held as follows:
"It is the nature of the injury, the part of the body where it is caused, the weapon used in causing such injury, which are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not."
9. The next contention of the learned counsel for the appellants is that the prosecution has not come forward with any explanation for the injuries sustained by A1 and A2, and the same is fatal to the prosecution case. But, the evidence of P.W.7 is that a case was registered on the complaint given by A1 and both the cases were taken up for investigation and after investigation, when it came to light that it is the accused party alone the offenders, he referred the case registered on the complaint of A1 and filed such report. This explanation on the side of the prosecution is acceptable. Further, during questioning under Section 313 Cr.P.C., A1 and A2 have not stated anything about the injuries found on their bodies.
10.1 It is the further contention of the learned counsel for the appellants that though A3 was present in the scene of occurrence and according to P.Ws.1 and 5, she attacked both the deceased with M.O.3 stick, even then it could not be said that A3 had shared any common intention with A1 and A2 in murdering the victims or causing injuries on P.Ws.1 and 5. According to him, on the established facts, A3 cannot be held liable for the offence of murder or attempting on the life of P.Ws.1 and 5 on the constructive liability viz., with the aid of Section 34 I.P.C. and therefore, she is liable to be acquitted of the charges.
10.2 We see some force on the above submission of the learned counsel for the appellants. It is the evidence of P.Ws.1 and 5, who are the eye witnesses to the occurrence, that A3 beat both the deceased with M.O.3 stick. Though A3 is said to have attacked the deceased with stick, it could not be said that she had the knowledge that A1 and A2 would cause fatal attack on the victims. Unless it is established that A3 in attacking the deceased shared the common intention with A1 and A2 to commit the murder of the victims, it is not possible to hold her guilty for the offence under Section 302 r/w 34 I.P.C.
10.3 From the sequence of events, as noted earlier, A3 beat the deceased only in the course of quarrel between them on one hand and the deceased party on the other hand and she did not have any knowledge that A1 and A2 were going to commit the murder of Deceased Nos.1 and 2 by using M.O.1 axe and M.O.2 aruval. In the absence of such materials, viz., knowledge of A1 and A2 being armed with deadly weapons and that they are likely to fatally attack the victims, we have no doubt at all to hold that the conviction of A3 under Section 302 r/w 34 I.P.C. cannot be legally sustained. Accordingly, she is acquitted of that offence.
11. Now, coming to the charge under Section 302 r/w 34 I.P.C. against A1 and A2, it is the evidence of P.Ws.1 and 5, in categorical terms that A1 cut on the right shoulder of Deceased No.1 with M.O.1 axe and also on Deceased No.2 all over the body. It is their further evidence that A2 cut Deceased No.1 with M.O.2 aruval all over his body indiscriminately as well as cut Deceased No.2 also all over her body. The ocular evidence of P.Ws.1 and 5 is corroborated by P.Ws.3 and 4 coupled with the certificates issued by them Exs.P2 and P5. According to P.W.3, the Doctor, who conducted autopsy on the body of Shanmugam (Deceased No.1), he found 12 injuries all over the body and it is opined that he would have died due to shock and haemorrhage and injury to the vital organ viz., brain. According to the evidence of P.W.4, who is also a Doctor and who conducted autopsy on the body of Mariyammal (Deceased No.2), she found six injuries all over the body and she was of the opinion that the deceased would have died due to shock and haemorrhage and the injuries sustained on the neck and head. Though P.Ws.1 and 5 are interested witnesses, their evidence is cogent, convincing and inspires confidence of this Court. Merely because they are interested witnesses, their evidence cannot be brushed aside. Therefore, it is clear that the prosecution has established that it is A1 and A2 and they alone caused the fatal attack on the deceased. The submission of the learned counsel for the appellants that the act of A1 and A2 would fall under exceptions 2 and 4 to Section 300 I.P.C. also does not merit acceptance, because it is not the case of the defence that due to sudden quarrel, the occurrence had taken place, but the fact remains that prior to the occurrence, there was quarrel between the parties and in such circumstances, it cannot be said that A1 and A2 had no intention to attack the deceased and caused their death. In the above circumstances, the act of A1 and A2 neither can be brought under exception 2 nor 4 to Section 300 I.P.C.
12.1 Even though we have acquitted A3 under Section 302 r/w 34 I.P.C. (2 counts) and convicted A1 and A2 under Section 302 r/w 34 I.P.C. (2 counts), the charge against them under Section 307 r/w 34 I.P.C. (2 counts) remains to be answered.
12.2 Coming to the charge under Section 307 r/w 34 I.P.C. (2 counts), it is the further evidence of P.Ws.1 and 5 that A3 attacked P.W.1 with M.O.3 stick on the head of P.W.1 and on the head, right ear and right cheek of P.W.5. Their evidence also shows that they had been attacked by A1 and A2 with M.O.2 axe and M.O.2 aruval and caused grievous injuries all over the body. This evidence of P.Ws.1 and 5 is well corroborated by the medical evidence of P.W.4 and the accident registers issued by her viz., Exs.P3 and P4. Now, the question is whether all the accused viz., A1 to A3 had the common intention of attempting on the lives of P.Ws.1 and 5. Taking into account the weapons used by A1 and A2 in attacking P.Ws.1 and 5 and the nature of injuries caused on them would show the common intention of A1 and A2 to attempt on the lives of P.Ws.1 and 5. But, A3 attacked P.Ws.1 and 5 only by M.O.3 stick. As already seen A3 had never shared the common intention of A1 and A2 in attempting on the lives of P.Ws.1 and 5 and taking into consideration that A3 is a lady, aged about 65 years, it cannot be said that she made an attempt on the lives of P.Ws.1 and 5. At the worst, her intention may be to cause injury on P.Ws.1 and 5 and therefore, taking into account the medical evidence available on record, we are of the considered opinion that her act may be brought under Section 325 (2 counts) I.P.C. instead of 307 r/w 34 (2 counts). Accordingly, we modify the conviction imposed on A3 under Section 307 r/w 34 I.P.C. (2 counts) into one under Section 325 I.P.C. (2 counts) and sentence her to undergo rigorous imprisonment for four years for each count. But, however, satisfied with the evidence referred to above against A1 and A2 with regard to the charge under Section 307 r/w 34 I.P.C. (2 counts), the conviction and sentence imposed on them are confirmed. The sentences are ordered to run concurrently.
13. In view of the foregoing reasons, the appeal is disposed of as hereunder :
(i) The appeal in so far as A1 and A2 are concerned, is totally dismissed.
(ii) The appeal in so far as A3 is concerned, is partly allowed on the lines stated above. The learned Sessions Judge shall take steps to secure A3 and remit her to the prison to serve the remaining period of imprisonment. The bail bonds executed by her shall stand cancelled.
ATR Copies to
1. The Principal Sessions Judge, Dindigul.
2. The Inspector of Police, Kannivadi Police Station.
3. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.