Madras High Court
Sangiah vs State Rep. By on 7 December, 2006
Author: K.N.Basha
Bench: Prabha Sridevan, K.N.Basha
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07/12/2006 CORAM: THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.1004 of 2003 Sangiah .. Appellant Accused Vs. State rep. By the Inspector of Police, Sedapatti Police Station, Sedapatti, Madurai District. .. Respondent Complainant Prayer Criminal Appeal against the judgment dated 30.01.2002 in S.C.No.313 of 2001 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.III, Madurai. !For Appellant ... Mr.S.Nagamuthu for M/s.M.Santhana Raman and M.R.Sivakumar ^For Respondent ... Mr.M.Daniel Manoharan :JUDGMENT
(Judgment of the court was delivered by K.N.BASHA, J.) The sole accused, Sangiah, has come forward with this appeal challenging his conviction and sentence passed by the learned Additional District and Sessions Judge, Fast Track Court No.III, Madurai, in S.C.No.313 of 2001 dated 30.01.2002 convicting him under Section 302 I.P.C. and sentencing him to life imprisonment.
2.The facts of the case, as projected by the prosecution, are as follows :
(i) The accused and the deceased are the residents of Sedapatti village. P.W.1 is the mother-in-law of the deceased. P.W.2 is the brother-in-
law of the deceased and the accused. The deceased borrowed an amount of Rs.1,000/- from the accused one year prior to the date of occurrence. The accused demanded to settle the dues with interest. The deceased informed him that he would settle the dues soon.
(ii) On 09.10.2000 at 5.00 p.m., the accused demanded the deceased to settle the dues in front of the shop of P.W.10 which resulted in a wordy quarrel between the deceased and the accused. The accused took out a knife, M.O.1, from his waist and stabbed the deceased on his left neck and on his back. Thereafter, the accused ran away from the scene. The villagers gathered at the time of occurrence. P.W.1 along with P.Ws.4 and 5 took the injured to the Police Station.
(iii) P.W.14, the Inspector of Police, Sedapatti Police Station, received the report, Ex.P.1, from P.W.1 at 5.30 p.m. on 09.10.2000 and registered a case in Crime No.319 of 2000 under Section 307 I.P.C. Ex.P.13 is the Express First Information Report. He has sent the First Information Report to the Judicial Magistrate Court and to the higher officials. P.W.14 sent the injured with a Memo to the Government Hospital. The deceased died on the way to the Government Hospital.
(v) P.W.14, received the message that the deceased died on the way to the Hospital. Thereafter he went to the hospital and confirmed the death of the deceased and altered the offence from 307 I.P.C. to 302 I.P.C. He has sent the altered First Information Report to the higher officials and to the Magistrate Court. He held inquest on the dead body of the deceased. Ex.P.14 is the Inquest Report. He has sent the body for Post-Mortem through the Constable.
(vi) The Doctor, P.W.8, conducted post-mortem on the dead body of the deceased on 10.10.2000. He found the following injuries :
(1)An incised wound over the left side of the neck of about 4 cm X 2 cm X 4 cm depth above the left clavicle.
(2)An abrasion over the left side of the back 4 cm X 1 cm X skin depth.
Internal Examination :
The incised wound on the left side of the neck above the Left clavicle on exposing the region the depth of the wound is of upto sternomastoid (torn) - muscle intact. Torn jugular vein left side torn carotid artey left side. Internal Examination of the skull vault intact. Brain structures Normal No bleeding or fracture of the skull bone. Neck : Trachea intact, Thyroid cartilage, normal. Chest : Heart chambers empty. Lungs normal. Ribs. Normal. Abdomen : Stomach with 300 ml of undigested food. Small intestine distended with gas. Liver, Spleen : Normal. No congsetion. Bladder - empty. External Genitalia - Normal."
Ex.P.6 is the Post-Mortem Certificate. He is of the opinion that the deceased died due to injury to the major vessels of left side of neck leading to haemorrhage, haemorrhagic shock.
(vii) P.W.14, in continuation of his investigation, went to the scene of occurrence and prepared the Observation Mahazar, Ex.P.7 and the Rough Sketch, Ex.P.15. He searched for the accused on 10.10.2000 and arrested the accused on the same day at Usilampatti-Peraiyur Road at 11.00 a.m. In pursuance of the admissible portion of his confession under Ex.P.3, P.W.14 recovered the knife, M.O.1. Thereafter, he has remanded the accused for judicial custody.
The remand report is marked as Ex.P.16. He has examined the Doctor P.W.8 by showing the knife, M.O.1. He has sent the materials objects for chemical examination through the Court. He has examined the Doctor, P.W.8 and the Court Clerk, P.W.12 and recorded their statements. He has received the Biology Report, Ex.P.11 and Serology Report, Ex.P.12 and after completion of the investigation he has filed the charge sheet against the accused under Section 302 I.P.C.
3. The prosecution in order to prove its case examined P.Ws.1 to 14, filed Exs.P.1 to P.16 and marked M.Os.1 to 6.
4. When the accused was questioned under Section 313 of the Code of Criminal Procedure in respect of the incriminating circumstances appearing against him through the evidence adduced by the prosecution, the accused has come forward with the version of total denial. He has not chosen to examine any witness on his side.
5. Mr.S.Nagamuthu, learned counsel appearing for the appellant contended that the prosecution has not come forward with the clear and cogent version. It is submitted by the learned counsel for the appellant that there are contradictions between the evidence of the eye-witnesses, P.Ws.1 to 5. It is further submitted by the learned counsel for the appellant that P.Ws.1, 3 and 5 have stated that the accused gave two stabs on the deceased, one on the left neck and another on the back. But P.W.2 has stated that the accused gave a single stab on the left neck. It is also submitted by the learned counsel for the appellant that P.W.4 is also stated that he heard that the accused gave a single cut on the left side neck. Therefore, it is contended by the learned counsel for the appellant that there is no consistency in the evidence of the eye-witnesses regarding the number of stabs said to have been given by the accused. The learned counsel for the appellant also pointed out that as per the Post-Mortem Certificate, Ex.P.6, there is only one incised wound was found and there is no other incised or stab wound on the deceased and the second injury on the back of the deceased is only an abrasion. Therefore, it is contended by the learned counsel for the appellant that the evidence of the eye-witnesses are also falsified by the medical evidence.
6. It is also submitted by the learned counsel for the appellant without prejudice to his contentions that the evidence adduced by the prosecution do not constitute the offence under Section 302 I.P.C. It is submitted by the learned counsel for the appellant that the entire occurrence took place due to a sudden quarrel and the accused gave a single stab on the left side neck of the deceased and therefore the offence would come only under Section 304 (II) I.P.C.
7. Per contra, the learned Additional Public Prosecutor contended that the prosecution has proved its case by adducing clear and cogent evidence through the eye-witnesses, P.Ws.1 to 5. It is submitted by the learned Additional Public Prosecutor that P.Ws.3 and 5 are the independent witnesses. It is also contended by the learned Additional Public Prosecutor that the evidence of the eye-witnesses is also corroborated by the medical evidence. It is further contended that the prosecution also proved the arrest and recovery of M.O.1, knife, and the knife also stained with human blood and tallied with the blood group of the deceased.
8. We have given our careful and anxious consideration to the rival contentions put forward by either side.
9. The prosecution in this case placed reliance on the eye- witnesses, P.Ws.1 to 5. P.W.1 is the mother-in-law of the deceased and P.W.4 is the brother of the deceased and they have also spoken about the motive part of the prosecution. It is the case of the prosecution that the deceased borrowed a sum of Rs.1,000/- from the accused and the accused demanded the same to be returned with interest. The deceased also accepted to settle the dues, but only sought for some time. P.W.1 has also mentioned in her report, Ex.P.1, regarding the motive part of the prosecution and stated that there were frequent quarrels between the deceased and the accused in respect of the demand of the accused to settle the dues of Rs.1,000/-. The evidence of P.Ws.1 to 5 is also disclosed that at the time of occurrence, there was a quarrel between the accused and the deceased regarding the money transaction. Therefore, we are of the considered view that the prosecution has proved the motive in this case against the accused.
10. The eye-witnesses, P.Ws.1 to 5, have also categorically spoken about the overt act alleged against the accused. It is also mentioned by P.W.1, in her report, Ex.P.1, about the specific overt act alleged against the accused as the accused is said to have quarreled with the deceased demanding him to settle the dues with interest and thereafter stabbed the deceased with a knife, M.O.1, on his left side neck. The evidence of P.Ws.1 to 5 is also corroborated by the medical evidence. The Doctor, P.W.8 has stated as per the Post-Mortem report, Ex.P.6, that the deceased died due to the injury caused to the major vessels of left side of neck resulting shock and haemorrhage. Therefore, it is very clear that the deceased died due to homicidal violence and that too at the hands of the accused.
11. We are now left with the consideration of the nature of offence said to have been committed by the accused. A perusal of Ex.P.1 clearly shows that there were frequent quarrels between the deceased and the accused as the accused demanded the return of the amount of Rs.1,000/- given by him to the deceased as a loan and the deceased has not paid the dues for the last more than a year. It is also pertinent to note that even in Ex.P.1, it is specifically mentioned that a wordy quarrel preceded the actual occurrence and the quarrel took place between the deceased and the accused in respect of the money transaction. The evidence of the eye-witnesses, P.Ws.1, 2 and 3 clearly shows that even at the time of actual occurrence, there was a wordy quarrel between the deceased and the accused in respect of money transaction. P.W.3, one of the eye-witnesses, has categorically stated even in the chief examination that there was a quarrel between the deceased and the accused and only thereafter, the accused said to have taken the knife, M.O.1, from his waist and stabbed the deceased. P.W.5, the yet another eye-witness and wife of the deceased, has also stated in her chief examination that there was a quarrel between her husband, the deceased, and the accused in respect of the loan amount and her husband was requesting the accused to give some more time and only thereafter the accused said to have stabbed the deceased. Therefore, it is crystal clear from the evidence of the eye-witnesses and other materials available on record and more particularly from the perusal of Ex.P.1 that there were frequent quarrels between the accused and the deceased for a long time as the accused demanded the deceased to settle the loan amount of Rs.1,000/- and therefore, it is quite natural that the accused was nurturing sustained provocation against the deceased.
12. A perusal of the confession of the accused recorded by the police under Section 27 of the Indian Evidence Act for the purpose of recovery of M.O.1, Knife, shows that there were frequent quarrels between the accused and the deceased for the last more than a year as the accused going on demanding the deceased to return the amount, but the deceased evading to settle the dues. It is also seen from the perusal of the confession of the accused that even on the fateful day of occurrence, the accused demanded the deceased to settle the dues which resulted in a wordy quarrel and thereafter the deceased pushed down the accused and due to that he has taken the knife from his waist and gave a single stab on the deceased. It is well settled by a number of decisions that in the interest of justice, it is permissible to look into confession recorded under Section 25 or Section 27 of the Indian Evidence Act in order to decide the nature of offence said to have been committed by the accused.
13. The above said principle was laid down in the following decisions :
1.THANDAVAN, IN RE . reported in 1972 L.W. (Crl.) 244 ;
2.GANESAN, IN RE. reported in 1973 L.W. (Crl.) 42 ;
14. This Court further taken a similar view in the following decisions :
1.CHANDRAN, IN RE reported in 1988 L.W.(Crl.) 113 ;
2.MUTHUSWAMY V. STATE reported in 1994 (1) L.W. (Crl.) 44 ;
3.VAIRAMUTHU V. STATE reported in 1996 (1) L.W. (Crl.) 9 ;
15. As already stated, as per the version of P.Ws.1 to 5, that there were frequent quarrel between the accused and the deceased in respect of money transaction. Even in Ex.P.1, it is clearly stated that a wordy quarrel preceded the actual occurrence. Apart from the above said materials available on record, the perusal of the confession of the accused recorded by the police under Section 25 of the Indian Evidence Act for the purpose of recovery of M.O.1, knife, clearly shows that even at the time of fateful occurrence, there was a wordy quarrel between the accused and the deceased and further the deceased pushed down the accused and only thereafter the accused is said to have taken the knife from his waist and gave a single stab on the deceased. P.W.2, one of the eye-witnesses, has categorically stated that the accused cut the deceased only once on his neck. Though the other eye-witnesses stated that the accused cut twice, the Doctor P.W.8 has found only one stab injury on the left neck of the deceased and the second injury is only an abrasion and the Doctor, P.W.8, has stated that that injury could have been caused while the deceased came into the contact of a rough surface. Therefore, it is crystal clear that the accused has given only a single stab on the deceased.
16. A perusal of the evidence of the eye-witnesses P.Ws.1 to 5, confession of the accused leading to the recovery of M.O.1, knife, and the medical evidence clearly shows that the misunderstanding and wordy quarrel between the accused and the deceased added fuel into the fire by the conduct of the deceased pushing down the accused resulting grave and sudden provocation for the accused to stab the deceased.
17. In SANKARLAL ALIAS SANKARAYEE V. STATE reported in 1989 L.W. (Crl.) 468 a Division Bench of this Court has held that the term 'self-control' in Section 300 I.P.C. is a subjective phenomenon and it can be inferred from the surrounding circumstances of a given case. In order to find out whether the last act of provocation upon which the offender caused the death was sufficiently grave as to deprive him of the power of self-control, we have to take into consideration the previous act of provocation caused by the deceased person. This principle of sustained provocation has been considered by this Court in a number of decisions following the observations of the Supreme Court in K.M. NANAVATI VS. STATE OF MAHARASHTRA reported in AIR 1962 SC 605.
18. The theory of sustained provocation was upheld by this Court in SUYAMBUKANI VS. STATE reported in 1989 L.W. (Crl.) 86. This decision was followed by this Court in a number of later decisions including a decision in GANESAN VS. STATE reported in 2006-2-L.W. (Crl.) 656.
19. In a landmark decision in K.M.NANAVATI VS. STATE OF MAHARASHTRA reported in A.I.R. 1962 S.C. 605, the Hon'ble Supreme Court of India has laid down the following principles regarding the Exception 1 to Section 300 I.P.C. :
"1. The test of grave sudden provocation is whether a reasonable man, belonging to the same class of soceity as the accused, placed in situation in which the accused was placed would be provoked as to lose his self-control.
2. In India, words and gestures may also, under certain circumstances, cause gave and sudden provocation to an accused so as to bring his act with the first Exception of Section 300 I.P.C.
3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.
4. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion has cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
In the above said decision, the Apex Court has held that the mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. As far as the instant case is concerned, as already pointed out, regarding the sequence of events took place prior to the actual commission of the offence by the accused, as spoken by P.Ws.1 to 5, which culminated into the appellant doing away with the deceased is tell-tale of the grave and sudden provocation.
20. Therefore, in view of the above said reasons and in view of the settled principle of law laid down by the Apex Court and this Court, we have no hesitation to hold that the accused has stabbed the deceased on account of the grave and sudden provocation caused by the deceased by pushing down the accused after the wordy quarrel as the accused was already nurturing sustained provocation. We, accordingly, hold that the appellant is entitled to Exception 1 to Section 300 I.P.C.
21. For the foregoing reasons, the conviction and sentence imposed on the appellant by the learned Additional District and Sessions Judge, Fast Track Court No.III, Madurai, in S.C.No.313 of 2001 dated 30.01.2002, under Section 302 I.P.C. are set aside and instead the appellant is convicted under Section 304 (I) I.P.C. and sentenced to undergo seven years rigorous imprisonment. With this modification, this appeal is partly allowed.
gg To
1. The Additional District and Sessions Judge, F.T.C.No.III, Madurai.
2. - do- thro" the Principal Sessions Judge, Madurai.
3. The Inspector of Police, Sedapatti Police Station, Sedapatti, Madurai District.
4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.