Madras High Court
Madasamy vs State on 21 March, 2006
Author: P.D.Dinakaran
Bench: P.D.Dinakaran, P.Murgesen
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/03/2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE P.MURGESEN Criminal Appeal No.880 of 2002 Criminal Appeal No.558 of 2005 Madasamy S/o.Chelliah .. Appellant in Crl.A.No.880/2002 Kumar S/o.Ramasubbu Naicker .. Appellant in Crl.A.No.558/2005 vs. State, rep. by Inspector of Police, Thiruvengadam Police Station, Crime No.308 of 1995 .. Respondent in both the appeals. Criminal Appeals filed under Section 374(2) of the Code of Criminal Procedure against the judgment of the learned III Additional District and Sessions Judge, Tirunelveli, dated 12.02.2002 in Sessions Case No.200 of 1997. !For Appellant in ... Mr.A.Arivuchandran Crl.A.No.880/2002 Legal Aid Counsel For Appellant in ... Mr.V.Sasi Kumar for Crl.A.No.558/2005 Mr.M.Michael Bharathi ^For Respondent ... Mr.K.Radhkrishnan, Additional Public Prosecutor. :COMMON JUDGMENT
(The judgment of the Court was delivered by P.D.DINAKARAN,J.) The Accused Nos.1 and 2 in Sessions Case No.200 of 1997 on the file of the III Additional District and Sessions Judge, Tirunelveli, have filed Criminal Appeal Nos.880/2002 and 558/2005 respectively. The first accused is convicted for the offence punishable under Section 302 I.P.C. and the second accused is convicted under Sections 302 r/w 34 I.P.C. and 323 I.P.C. Accused Nos.1 and 2 are sentenced to undergo life imprisonment with a fine of Rs.1000/- in default to undergo two years rigorous imprisonment under Section 302 and 302 r/w 34 I.P.C. respectively and Accused No.2 is sentenced to undergo six months rigorous imprisonment under Section 323 I.P.C. The sentences were directed to run concurrently. The appellants in both the appeals will hereinafter be referred to as arrayed before the trial Court.
2. The charge against the accused is that on 02.11.1995 at 4.00 p.m. near Iyyanar Temple on Vanaramuti Road, Accused No.1 armed with a billhook (M.O.5) and Accused No.2 armed with a stick having one side sharp edge (M.O.4), with a common intention to cause the death of the deceased, Accused No.2 attacked him with M.O.4 stick on left side of his face and left ear and Accused No.1 cut him with M.O.5 billhook on his left ear and back side of the neck, which resulted in his instantaneous death and in the course of the same transaction, Accused No.2 attacked P.W.1 Kandhaiah, with M.O.4 stick on his back and with a stone on his left ankle and caused simple injuries.
3.1. The prosecution case, which has been found substantially true by the Trial Court, may be stated as follows:
The motive for the occurrence according to the prosecution is that Accused No.1 borrowed a sum of Rs.250/- from the deceased and when the deceased demanded money from Accused No.1, a sudden quarrel arose and the accused murdered the deceased.
3.2. Deceased Velusami and P.W.2 Shenbagam are paternal uncles of P.W.1 Kandaiah. P.W.2 Shenbagam is the elder brother of the deceased.
3.3. P.W.1 accompanied the deceased to get back a sum of Rs.250/- from Accused No.1, which was borrowed by him. Deceased is a physically challenged person. Both went to Jameen Devar Kulam in a bicycle at 3.30 p.m. The deceased demanded Rs.250/- from Accused No.1 and Accused No.1 gave Rs.100/- to the deceased. The deceased also demanded the balance amount, for which, Accused No.1 asked the deceased to go to the southern side of the village and he would give the balance amount. P.W.1 and the deceased went to southern side of their village.
3.4. When they were near Iyyanar Temple, the accused were present there.
There also, the deceased demanded the balance amount. Again Accused No.1 gave Rs.100/- to the deceased. After receiving the said amount, the deceased demanded the balance sum of Rs.50/-. Due to that, quarrel started between the deceased and Accused No.1. Accused No.2 took out M.O.4, stick, and attacked the deceased on the left side of his face. Accused No.1 took out M.O.5, billhook, and cut the deceased on his left ear and back side of the neck. P.W.1 made hue and cry. Immediately, Accused No.2 attacked P.W.1 with M.O.4, stick, on his back and threatened him to run away from the scene of occurrence. Again Accused No.2 attacked P.W.1 with a stone on his left ankle while he was running.
3.5. After some time, P.W.1 came back to the scene of occurrence and saw the deceased lying dead. The bicycle was not found there. Immediately P.W.1 went to his village and informed about the occurrence to the wife of the deceased. P.W.2 went to nearby village and reached the house at 9.00 p.m. P.W.1 along with P.W.2 went to Vanaramutti O.P. Police Station and informed about the occurrence orally, where they were asked to go to Thiruvengadam Police Station.
3.6. P.Ws.1 and 2 reached Thiruvengadam Police Station at 1.00 a.m. on the next day. P.W.10 Sub Inspector of Police recorded Ex.P1, statement, from P.W.1 and registered a case in Crime No.308 of 1995 under Sections 323, 336 and 302 I.P.C. Thereafter, he prepared Ex.P15, printed first information report, and forwarded the same to the jurisdictional Magistrate and to the higher police authorities through P.W.7, Grade I Police Constable.
3.7. As the Investigating Officer died, P.W.10 has given evidence on his behalf. Based on Ex.P15, Thiru.Kanagaraj, Inspector of Police, took up the investigation and proceeded to the scene of occurrence at 6.00 a.m. on 03.11.1995 and prepared Ex.P2, observation mahazar, and Ex.P16, rough sketch, in the presence of P.W.3 Gandhimathinathan, Village Administrative Officer, Jameen Devar Kulam and another.
3.8. In the presence of the same witnesses, the Inspector recovered M.O.1, bloodstained earth, M.O.2, sample earth, M.O.3, a piece of wooden stick, and M.O.4, stick under Ex.P3, mahazar, attested by the same witnesses. The Inspector also conducted inquest and prepared Ex.P17, inquest report. Thereafter, the body was sent through P.W.8, Police Constable, for postmortem. He also recovered M.Os.7 to 9 personal apparels found on the body of the deceased under Form 95 produced by P.W.8.
3.9. In the meanwhile, P.W.9, Dr.Amsaveni, Assistant Surgeon, Government Hospital, Sankarankovil, examined P.W.1 and treated him on 03.11.1995. As per her statement, P.W.1 sustained a simple injury over his front left ankle. She issued Ex.P11, accident register, and Ex.P12, wound certificate, to that effect.
3.10. P.W.9 also conducted autopsy over the body of the deceased at 3.30 p.m. on the same day. As per the postmortem certificate Ex.P14, there were two deep cut injuries and a contusion found on the body of the deceased and on dissection, all the skull bones except frontal and parietal bones were fractured including the base of the skull and laceration present in the left cerebral hemisphere and the death was due to injury nos.1 and 2 caused on the deceased.
3.11. On 14.11.1995, Accused No.2 surrendered before the Judicial Magistrate No.I, Kovilpatti. On 19.11.1995, the Inspector of Police arrested accused No.1. Accused no.1 voluntarily gave a confession statement in the presence of P.W.3 and another. Ex.P4 is the admissible portion of the statement, pursuant to which, M.O.5, billhook, and M.O.6, Hercules cycle, were recovered under Exs.P5 and P6, mahazars, respectively, attested by P.W.3 and another.
3.12. The Inspector of Police sent the material objects with Ex.P7, requisition, to the Court to subject them for chemical analysis and the same were sent to the laboratory under Ex.P8, Court's letter. Exs.P9 and P10 are the Chemical Analysis Report and the Serologist Report respectively. He examined the witnesses and recorded their statements. On completion of the investigation, he filed a final report against the accused for the offences punishable under Sections 323, 336 and 302 r/w 34 I.P.C. on 29.08.1996.
4.1. Before the Sessions Court, on behalf of the prosecution, P.Ws.1 to 10 were examined as witnesses and Exhibits P1 to P17 and material objects M.O.1 to M.O.9 were marked.
4.2. The accused when questioned under Section 313 of the Criminal Procedure Code, denied bluntly all the incriminating circumstances brought out against them. 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 accused as referred to earlier. Hence, the appeal.
6.1. Learned counsel for the appellants fairly seek only modification of the conviction and sentence.
6.2. According to the learned counsel for the appellants, even assuming the evidence of P.W.1, the only injured eye witness is acceptable, P.W.1 nowhere had spoken as to the intention of the accused to commit the murder of the deceased.
7. The learned Additional Public Prosecutor for the respondent/State supported the order of the trial Court and submitted that the factual findings recorded clearly indicate the role played by each of the accused.
8. We have given careful consideration to the submissions of both sides in the light of the evidence available on record and the materials placed before us.
9. The point that arises for our consideration are:
(i) whether the crime in question is a murder or culpable homicide not amounting to murder, and in which case, whether the crime in question would fall under fourth exception to Section 300 I.P.C; and
(ii) Whether the second accused could be convicted for the offence punishable under Section 302 with the aid of Section 34 IPC?
10.1. The statement of P.W.1 is that when he accompanied the deceased, the deceased demanded a sum of Rs.250/- from the Accused No.1, which was borrowed from him, but Accused No.1 paid only Rs.100/- and when the deceased demanded the balance amount, Accused No.1 asked the deceased to go to the southern side of the village, so that he would repay the money. Therefore, the deceased and P.W.1 were proceeding near Iyyanar Kovil. The accused came in the opposite direction and paid another Rs.100/- on demand. As the deceased was still demanding the balance sum of Rs.50/-, a quarrel arose between the deceased and Accused No.1. Immediately Accused No.2 attacked the deceased with M.O.4, stick, on his face, followed by which Accused No.1 cut the deceased with M.O.5, billhook, on his left ear and back side of his neck. Accused No.2 attacked P.W.1 on his back and when P.W.1 started running, Accused No.2 threw a stone on his left ankle. This portion of the evidence is not disputed by both sides. Of course, the overt act of Accused Nos.1 and 2 on the deceased and P.W.1, as stated by P.W.1, corroborates the medical evidence of P.W.9, coupled with Ex.P14, postmortem certificate, and Exs.P11 and 12, accident register and wound certificate issued to P.W.1.
10.2. In this regard, it is apt to refer the injuries found on the body of the deceased as mentioned in Ex.P14, postmortem certificate.
"1. Cut injury of 3 x 2cm x bone deep, bone cut, over the head in the occipital region 5cm from the (L) ear in oblique direction.
2. Cut injury of 6cm x 3cm x bone deep over the middle of the (L) ear starting from a point a cm front of tragus to 3cm from behind the pinna cutting the pinna into two.
3. A contusion of 5 x 4 cm over the (R) side of fore head including the upper eyelid.
On Dissection: All the skull bones except frontal & parietal bones fractured, including the base of the skull. Laceration present in the (L) cerebral hemisphere.
10.3. The cause of the death as per Ex.P14 postmortem certificate and as spoken to by P.W.9 is due to the cut injuries caused by A1, namely injury Nos.1 and 2, as spoken to by P.W.1.
11.1. P.W.1, nowhere, in his evidence speaks about the common intention between Accused Nos.1 and 2 to commit the murder of the deceased and therefore, Accused No.2 cannot be convicted under Section 302 with the help of Section 34 I.P.C.
11.2. Even according to the prosecution, Accused No.1 never refused to repay the amount from the beginning. On the other hand, he had repaid Rs.100/- initially and then another Rs.100/-, but a sudden quarrel arose only when the deceased was constantly pestering for the repayment of the balance amount of Rs.50/-. The sudden quarrel arose between them, which ultimately led to the attack by Accused Nos.1 and 2 as spoken to by P.W.1. The scene, as narrated by P.W.1 himself, would show that there is absolutely no intention to commit the murder of the deceased, and on the other hand, the occurrence is only due to the sudden quarrel attracting exception 4 to Section 300 I.P.C., which reads as follows:
"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
11.3. It is a settled law that Exception 4 to Section 300 I.P.C. can be invoked if the death is caused (a) without premeditation; (b) in a sudden fight; (c) when the offenders have not taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. All the ingredients mentioned above must be found. In the case on hand, the prosecution case mainly relies on the evidence of P.W.1 to bring home the offence under Section 302 IPC. But, P.W.1 had not spoken anything as to the intention of the accused to commit the murder of the deceased, nor the prosecution proved the premeditation of the crime as intended by Accused No.1. On the other hand, the evidence of P.W.1 clearly proves that Accused No.1 had initially repaid a sum of Rs.100/- and again paid another sum of Rs.100/-, as demanded by the deceased. Had there been any intention or premeditation to murder the deceased, Accused No.1 would not have repaid either Rs.100/- initially; or another sum of Rs.100/- thereafter and it was only when the deceased started pestering for the balance of Rs.50/- also, in spite of repayment of Rs.200/- by Accused No.1, a quarrel arose between the accused and the deceased, which turned into a fight at the instance of Accused No.2, who attacked the deceased by a sharp edged stick, namely M.O.4.
11.4. It is apt to refer at this stage that the injury caused on the deceased by Accused No.2 is a contusion of 5 x 4 cm over the right side of forehead including the upper eyelid (vide Ex.P14), which is not the cause for the death of the deceased as spoken to by P.W.9, postmortem doctor, and therefore it is not possible to hold that Accused No.2 had shared the intention with Accused No.1 even to cause the injury which might cause the death of the deceased.
11.5. Followed by the above said overt act by Accused No.2, Accused No.1 caused two cut injuries, namely injury Nos.1 and 2 (vide Ex.P14). If the entire scenario is analysed in the light of the evidence of P.W.1, it becomes clear that there was no premeditation and the occurrence had taken place in a heat of passion upon a sudden quarrel on account of the deceased pestering the accused to repay the paltry sum of Rs.50/-, which resulted in a sudden fight between the deceased on the one side and Accused Nos.1 and 2 on the other side, whereunder Accused No.1 caused grievous injuries on the deceased. But assuming that the injuries caused by Accused No.1 was intended and that it would cause the death of the deceased, we have no hesitation to hold that the case of the prosecution is covered squarely by Exception 4 to Section 300 IPC. That being so, Accused No.1 can be convicted only for the offence of culpable homicide not amounting to murder, punishable under Section 304 Part-I IPC, because he had intention to cause such grievous injury which would case the death of the deceased.
11.6. Then what remains to be answered is whether the conviction of Accused No.2 for the offence under Section 302 aided with Section 34 I.P.C. is sustainable. We have already rendered a finding that Accused No.2 used a sharp edged stick (M.O.4) and the injury caused by him, as referred to in Ex.P14 and as spoken to by P.W.9, Doctor, is a contusion. Further, there is strong evidence to show that Accused No.2 voluntarily caused the hurt not only on the deceased but also on P.W.1, which proves the element of intention on the part of Accused No.2 in causing hurt on the deceased as well as P.W.1, which, in our considered opinion, would substantially bring home the offence committed by Accused No.2 punishable under Section 324 I.P.C. for the injuries caused on the deceased, but not under Section 302 read with Section 34 I.P.C. as weighed by the trial judge.
11.7. Now coming to the conviction of Accused No.2 under Section 323 I.P.C. is concerned, we see no reason to interfere with the finding of the trial court on this aspect, as P.W.1 is the injured witness and his evidence coupled with the medical evidence of P.W.9, the Doctor, who examined P.W.1 and gave treatment and Exs.P11, Accident Register and Ex.P12, wound certificate, clearly prove the overt act of accused No.2 on P.W.1.
12. For the reasons aforesaid, we are bringing home the offence committed by Accused No.1 under Exception 4 to Section 300 I.P.C. and convict him under Section 304 Part-I I.P.C. as Accused No.1 caused the death of the deceased with the intention of causing such bodily injury as is likely to cause death and sentence him to undergo rigorous imprisonment for seven years. The sentence already undergone by him shall be given set off. The Crl.A.No.880/2002 filed by Accused No.1 is allowed to the extent indicated above.
13.1. Taking into consideration that there is no common intention between Accused Nos. 1 and 2 to do away the deceased, the conviction of Accused No.2 and sentence imposed on him under Section 302 r/w 34 I.P.C. are set aside and instead Accused No.2 is convicted under Section 324 I.P.C. for the injuries caused on the deceased and sentenced him to undergo rigorous imprisonment for three years.
13.2. The conviction and sentence imposed on Accused No.2 under Section 323 I.P.C. for the simple injury caused on P.W.1, are confirmed.
13.3. Both sentences are directed to run concurrently.
13.4. The sentence already undergone by Accused No.2 shall be given set off. The Crl.A.No.558/2005 filed by Accused No.2 is also allowed to the extent indicated above.
ATR Copies to
1. III Additional District & Sessions Judge, Tirunelveli.
2. The Inspector of Police, Thiruvengadam Police Station, Tirunelveli District.
3. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.