Madras High Court
Natarajan vs The State Rep. By on 13 December, 2023
Author: M.S.Ramesh
Bench: M.S.Ramesh, M.Nirmal Kumar
Crl.A.(MD).No.260 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 24.08.2023
Pronounced on 13 .12.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
Crl.A.(MD) No.260 of 2021
Natarajan ...Appellant/Accused
Vs.
The State rep. by
The Inspector of Police,
Sanarpatti Police Station,
Sanarpatti, Dindigul District.
(Cr.No.474/2018) ...Respondent/Complainant
PRAYER: Appeal filed under Section 374(2) of Cr.P.C., to call for the
records in S.C.No.58 of 2019 dated 01.04.2021 passed by the learned
Additional District and Sessions Judge, Dindigul, Dindigul District and set
aside the same.
For Appellant : Mr.D.Venkatesh
For Respondent : Mr.A.Thiruvadi Kumar,
Additional Public Prosecutor
JUDGMENT
Page 1 of 24
https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 M.S.RAMESH,J.
The case of the prosecution in brief are as follows:
1.1. The deceased Selvam alias Selvaraj is the husband of the de-facto complainant Kavitha. The accused and the deceased were both engaged in the business of plucking coconuts. Prior to the incident, the deceased and the appellant were in the habit of consuming alcohol frequently, during which time, the deceased used to abuse and degrade the appellant. Owing to this, the appellant carried a grudge against the deceased and had therefore decided to kill him.
1.2. In this background, on 27.09.2018, at 07.00 PM, when the deceased was traveling in a two wheeler near the house of one Anand of JJ Nagar, Sanarpatti, the appellant had way laid him and by using vulgar words, attacked the deceased using a billhook machette with a single cut from the back of his head, through the neck upto his chest portion, thereby causing grievous injuries. The deceased succumbed to the injuries on the way to the hospital. The Investigation Officer of Sanarpatti Police Station filed a final report against the appellant for the offences under Section Page 2 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 294(b) and 302 of Indian Penal Code (hereinafter referred to as 'IPC').
1.3. Before the trial court, the prosecution had examined PW1 to PW6 as eye witnesses. PW1 is the wife of the deceased. While PW2 is relative of the deceased, PW3 is his wife. PW4 is the cousin and PW5 is a neighbour of the deceased. PW2's father was examined as PW6. The observation mahazar report Ex.P2 and the seizure report Ex.P3 were marked through PW8. The father of the deceased, who took him to the hospital, was examined as PW9.
The Village Administrative Officer, before whom the appellant was arrested and the material objects were seized, was examined as PW10 and through him, the admitted portion of the confession statement, as well as the seizure report, were marked as Exs.P5 and P6. PW11 is the Sub-Inspector of Police, who had registered the FIR marked as Ex.P7. The doctor, who conducted the postmortem, is PW11 and the postmortem report was marked as Ex.P9, as per which, one large cut lacerated wound measuring 39 cm in length, extending from the occipital region of the scalp to the left side of neck extending to the left chest wall, was found on the body. According to the doctor's opinion, the deceased would appear to have died of shock and hemorrhage, due to major vessel injuries on the neck. PW13 is the Page 3 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 Investigation Officer.
2. The trial court had accepted the case of the prosecution and held the charge under Section 294(b) as not proved and the charge under Section 302 IPC as proved against the appellant and sentenced him to undergo life imprisonment, together with a fine of Rs.10,000/-, in default to undergo imprisonment for a period of 3 months and for the offence under Section 341 IPC, the appellant was convicted and a penalty of Rs.500/- was imposed. In default of payment of the penalty, he was ordered to undergo one week rigorous imprisonment. This judgment of the trial court is under the challenge in the present appeal.
3. The learned counsel for the appellant pointed out certain discrepancies in the statements made by PW1 to PW6 and submitted that owing to these discrepancies, there was every possibility that the deceased could have been murdered by one Boopathy, whose wife was in an illicit relationship with the deceased. As an alternate submission, the learned counsel submitted that since there was only one cut injury on the body of the deceased, there was every possibility that the appellant may have Page 4 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 attacked the deceased, without premeditation and in a sudden heat of moment and therefore, the offence, if made out, can be construed only as culpable homicide not amounting to murder.
4. On the contrary, the learned Additional Public Prosecutor submitted that all the 6 witnesses have corroborated their statements with regard to the occurrence and have implicated the appellant of having assaulted the deceased with a deadly weapon. He submitted that since the appellant had a previous grudge against the deceased in having frequently picked up quarrels and abused him, this is not a case which could fall under any of the exceptions to Section 300 IPC and therefore, the trial court had rightly found the appellant guilty of having committed the offence punishable under Section 302 IPC and hence, no interference is required to the judgment of the trial court.
5. This is a case where the incident was witnessed by 6 persons, who were examined as PW1 to PW6. PW1, who is the wife of the deceased, had affirmed in her cross examination that when her husband had left in a two wheeler to PW2's house to buy food for him, he was way laid by the Page 5 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 appellant and abused in filthy language. When PW2 had questioned the appellant, she heard the quarrel and went to the place of incident, at which point of time, the appellant had assaulted her husband with a billhook machete which he had in his hand, with one cut on his neck, pulling it down to his chest. She also stated in her cross examination that her house was about 30 to 40 meters from the place of incident and therefore, she heard the wordy quarrel and went to the place of occurrence. PW2 also in his cross examination had corroborated the statement of PW1 that when he had questioned the appellant for abusing the deceased, the appellant had attacked the deceased with a billhook machete and when he had questioned the appellant for abusing the deceased, the appellant had attacked the deceased with a billhook machete. He further denied the suggestion of involvement of Boopathy in the crime.
6. Likewise, PW3, who is the wife of PW2 and also an eye witness to the incident, corroborated the statements of PW1 and PW2 with regard to the wordy quarrel and the consequent assault on the deceased by the appellant, with a single cut. Similar statements were also given by PW4 and PW5, which corroborated the statements of PW1 to PW3. Page 6 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021
7. The weapon used by the appellant was recovered from the backyard of the appellant's house, along with a blood stained lungi and a half hand shirt, which were all marked as MO1 to MO3 by the mahazar witness PW10. In the oral testimonies of the Investigation Officer PW13 also, he had confirmed about the recovery of these material objects from the backyard of the appellant's house.
8. PW12 is the doctor, who had conducted the postmortem on the body of the deceased. Through him, the requisition letter in Form 86 for conducting the postmortem was marked as Ex.P8 and the postmortem report as Ex.P9. As per Ex.P9, the doctor had found one large cut lacerated wound, which was 39 cm in length, extending from occipital region of scalp to the left side of neck and further extending to the left chest wall. The measurement of this wound was reported as follows:-
“i. 39 x 12 cm., x Bone depth at the level of Occipital region of Scalp.
ii. 39 x 5 x cm., at the level of Left side of Neck with exposure of Cervical Bone.
iii. 39 x 10 x 3 cam., at the level of Left Chest wall.Page 7 of 24
https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 All major vessels, Carotid Vessels Cut at Left side of Neck.” After having described this external injury, the doctor had opined that the deceased appeared to have died of shock and haemorrhage, due to major vessel injuries of the neck.
9. The alternate theory to the occurrence that was attempted to be put forth by the defence to the eye witnesses that one Boopathy may have been responsible for causing the death of the deceased, owing to the illicit relationship the deceased had with his wife, could not be elucidated or established by the defence during the course of cross examination from any of these 6 eye witnesses.
10. The biological report Ex.P16 also affirmed the existence of blood stain in MO2, as well as in the sample of the earth taken from the scene of occurrence and on the shirts and lungis of the appellant, as well as the deceased. The serological report affirmed that the blood was of human and belonging to B-Group.
Page 8 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021
11. On the strength of these evidences, the trial court had come to the conclusion that the appellant herein was guilty of having committed the offence of murder under Section 302 of Indian Penal Code (hereinafter referred to as 'IPC') and thereby had imposed the sentence. However, since the abusive words used by the appellant could not be established beyond reasonable doubt, he was acquitted for the offence under Section 294(b) IPC.
12. Before us, the learned counsel for the appellant could not discredit the oral testimonies of the eye witnesses, namely PW1 to PW6. As per the consistent statement of all these 6 witnesses, the appellant had waylaid the deceased on 27.09.2018 at about 07.00 P.M. when he was travelling in a two wheeler and picked up a quarrel by abusing the deceased. All of them affirmed that when PW2 intervened and questioned the appellant, he used the billhook to cut the deceased from the back of his head till the chest portion through the neck with a single cut injury. Each of the eye witnesses had also affirmed the presence of the other eye witnesses in the scene of occurrence and their witness to the crime. The evidence of PW12, who is the doctor who conducted the postmortem, when read along Page 9 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 with Ex.P9 postmortem report, also establishes the presence of a single injury from the scalp till the left chest wall and death resulting from this injury. In view of their consistent and corroborated statements with regard to the prior altercation between the appellant, deceased and PW2 and by taking into account the cause of death attributable to the single cut injury from the scalp to the chest portion, which was witnessed by all these 6 witnesses, we have no difficulty in holding that the appellant was responsible for having inflicted the injury of the deceased resulting in his death. Thus, the appellant is deemed to have committed an act of committed culpable homicide.
13. The consequential issue that requires consideration is as to whether this act of culpable homicide would amount to a murder or not?
14. The learned counsel for the appellant made an alternate submission stating that since there was no premeditation on the part of the appellant to commit culpable homicide and since it was pursuant to a sudden quarrel, the 4th exception to Section 300 would apply and therefore, the act committed by the appellant will not amount to a murder. Page 10 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021
15. The Hon'ble Supreme Court, in various decisions, including the case in Pulicherla Nagaraju v. State of Andra Pradesh, reported in (2006) 11 SCC 444, had enumerated some of the circumstances, which are relevant to find out whether there was any intention to cause death on the part of the appellant. Some of these circumstances that could be relevant to draw a distinction and determine the applicability of exception 4 to Section 300 IPC, for the purpose of ascertaining, whether there was any intention to cause death or the nature of the weapon used are: whether the weapon was carried by the accused or picked up from the spot; whether the act was due to sudden quarrel or a sudden fight; whether the incident had occurred by chance or whether there was any premeditation; whether there was any grave and sudden provocation and if so, the cause for such provocation; and whether the accused dealt a single blow or several blows.
16. In the present case, the appellant and the deceased were involved in the work of coconut plucking from the trees. The weapon (MO2) used by the appellant is admitted to be a weapon they use for cutting the coconuts from the tree tops. On the date of the incident, both the appellant, as well as Page 11 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 the deceased, had returned from their daily work of cutting the coconuts from the trees. Apparently, this work may have involved them of carrying the billhooks. It is not the case of the prosecution that the appellant had procured the billhook and carried it with an intention of killing the deceased. According to the oral testimony of PW1, when PW2, who is a relative of the deceased, had called the deceased and asked him to buy food for him, the deceased had left his house on a two wheeler and while proceeding to the house of PW2, he was waylaid by the appellant. The appellant had no knowledge about this errand assigned to the deceased. The appellant was not expecting the deceased to come by that side and only when he had seen the deceased on the two wheeler, he had stopped him and picked up a quarrel. It is also the statements of all the eye witnesses that PW2 had questioned the appellant for the altercation. PW1, on hearing the altercation, had also come out of her house and went to the scene of occurrence. The wordy altercation was immediately followed by the attack on the deceased. Thus, the presence of the accused and the deceased at the scene of occurrence was only by chance and therefore, a premeditation by the appellant to kill the deceased, at that day and time, is conspicuously absent.
Page 12 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021
17. On the other hand, there was every possibility that the appellant could have been suddenly provoked, owing to the wordy quarrel among them. In the light of these happenings, the appellant had taken the billhook, which he used for cutting the coconuts, and had rendered a single cut injury on the neck, which was pulled down till the chest of the deceased. The single cut injury has been confirmed in the oral testimonies of all the 6 eye witnesses, apart from the postmortem report also.
18. The Hon'ble Supreme Court, in several decisions, had dealt with cases of death caused by a single blow or injury and among other circumstances, had held that such an act would amount to commission of an offence of culpable homicide, not amounting to murder, which is punishable under Section 304 IPC.
19. In the case of Anbazhagan v. The State represented by the Inspector of Police reported in 2023 LiveLaw (SC) 550, some of the following decisions were considered, while upholding the above ratio:-
1. In the case of Tholan v. State of Tamil Nadu, AIR Page 13 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 1984 SC 759, the accused stood in front of the house of the deceased and used filthy language against some persons who were unconnected with the deceased. The deceased came out of his house and told the accused that he should not use vulgar and filthy language in front of ladies and asked him to go away.
The accused questioned the authority of the deceased to ask him to leave the place. In the ensuing altercation, the accused gave one blow with a knife which landed on the (right) chest of the deceased which proved to be fatal. The Court came to the conclusion that the accused could not be convicted under Section 302, but was guilty under Section 304 Part II. The circumstances which weighed with this Court were: (i) there was no connection between the accused and the deceased and the presence of the deceased at the time of the incident, was wholly accidental; (ii) altercation with the deceased was on the spur of the moment and the accused gave a single blow being enraged by the deceased asking him to leave the place; (iii) the requisite intention could not be attributed to the accused as there was nothing to indicate that the accused intended the blow to land on the right side of the chest which proved to be fatal.
2. In Chamru, Son of Budhwa v. State of Madhya Pradesh, AIR 1954 SC 652, in somewhat similar circumstances, where there was exchange of abuses between Page 14 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 the two parties both of whom were armed with lathis, they came to blows and in the course of the fight that ensued, the accused struck a lathi blow on the head of the deceased which caused a fracture of the skull resulting in the death. In view of the fact that the accused had given only one blow in the heat of the moment, it was held that all that can be said was that he had given the blow with the knowledge that it was likely to cause death and, therefore, the offence fell under Section 304, Part II of the IPC. In Willie (William) Slaney v. The State of Madhya Pradesh, AIR 1956 SC 116, there was, as here, a sudden quarrel leading to an exchange of abuses and in the heat of the moment a solitary blow with a hockey-stick had been given on the head. The Court held that the offence amounted to culpable homicide not amounting to murder punishable under Section 304, Part II.
3. In Kulwant Rai v. State of Punjab, (1981) 4 SCC 245, the accused, without any prior enmity or premeditation, on a short quarrel gave a single blow with a dagger which later proved to be fatal. This Court observed that since there was no premeditation, Part 3 of Section 300 of the IPC could not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the facts and circumstances of that case, the conviction of the accused was altered from Section 302 to that Page 15 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 under Section 304 Part II IPC and the accused was sentenced to suffer rigorous imprisonment for five years.
4. In Jagtar Singh v. State of Punjab, (1983) 2 SCC 342, the accused on the spur of the moment inflicted a knife- blow on the chest of the deceased. The injury proved to be fatal. The doctor opined that the injury was sufficient in the ordinary course of nature to cause death. This Court observed that: (SCC p. 344, para 8):-
"8. The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death."
(Emphasis supplied) This Court altered the conviction of the appellant from Section 302 IPC to Section 304 Part II IPC and sentenced the accused to suffer rigorous imprisonment for five years.
5. In Hem Raj v. State (Delhi Admn.), 1990 Supp SCC 291, the accused inflicted single stab injury landing on the chest of the deceased. The occurrence admittedly had taken place on the spur of the moment and in heat of passion upon a sudden quarrel. According to the doctor the injury was Page 16 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 sufficient in the ordinary course of nature to cause death. This Court observed as under: (SCC p. 295, para 14)"-
"14. The question is whether the appellant could be said to have caused that particular injury with the intention of causing death of the deceased. As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without premeditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither clause I nor clause III of Section 300 IPC will be attracted."
(Emphasis supplied) This Court while setting aside the conviction under Section 302 convicted the accused under Section 304 Part II and sentenced him to undergo rigorous imprisonment for seven years.
20. Culpable Homicide is not murder, when the case squarely falls within the 5 exceptions to Section 300 IPC. Even though none of the 5 exceptions are prima facie established on the evidence on record, the prosecution must still be required to bring the case under any of the 4 limbs Page 17 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 of Section 300 IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the 4 limbs of Section 300 IPC, the charge of murder would not be attracted and the case may be one of culpable homicide not amounting to murder, which is punishable under Section 304-I or 304-II IPC.
21. In this background, we have analyzed as to whether there was any intention on the part of the appellant to cause the death of the deceased or in other words, whether there was mens rea to commit an offence.
22. The case of the prosecution with regard to the motive is that the accused and the appellant used to regularly consume liquor, during which point of time, the deceased used to humiliate the appellant, owing to which, he carried a grudge against him and decided to kill him. However, the motive attributed by PW1 is that both the appellant and the deceased, on completion of their work of cutting the coconuts and collecting the daily wages, had frequent altercations with regard to splitting up of the wages. According to her, the appellant always demanded a higher share for himself, which lead to frequent altercations between them. The motive attributed by the prosecution that the appellant carried a grudge, owing to the humiliation Page 18 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 made by the deceased while drinking, was not spoken to by any of the witnesses. Thus, the possibility of a premeditation or a plan by the appellant to kill the deceased, owing to the earlier grudge of the humiliation caused to him, has not been established by the prosecution beyond reasonable doubt.
23. On the other hand, from the oral testimony of PW1, it could be seen that the appellant had a dislike or enmity towards the deceased, owing to the sharing of the income and the frequent quarrels between them. On the day of the incident, in view of the request made by PW2 to the deceased to buy him food, he had left his house, which was not known to the appellant when he had seen him coming in a two wheeler at that relevant point of time, nor is the case of the prosecution or any of the statements of the witnesses that the appellant was waiting at the place for the deceased to come there, in order to attack him.
24. As admitted and corroborated by all the eye witnesses, prior to the act, the appellant had picked up an altercation with the deceased, to which PW2 intervened and questioned him. The altercation was seen and witnessed by PW1 to PW6. In that heated moment, the appellant had used Page 19 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 the billhook, which is a weapon that he used for cutting the coconuts, on the body of the deceased.
25. As stated earlier, there was only one cut injury, which was inflicted by the appellant on the body of the deceased. The weapon had landed on the neck of the deceased, which the appellant had pulled down till his chest, thereby causing a cut injury of about 39 cm in length and then ran away from the scene.
26. On a conjoint appreciation of these facts, which are revealed through the evidence in hand, we have no difficulty in coming to the conclusion that by taking into account the nature of the weapon used on the deceased, which was after an altercation between them and without any premeditation, when the appellant had delivered a single blow with the billhook, it has to be necessarily held that the present case does not fall within any of the 4 limbs of Section 300 IPC.
27. The trial court had held the charge against the appellant for the offence under Section 341 IPC as proved and convicted him by imposing a Page 20 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 penalty of Rs.5,000/-. PW1 to PW6 had consistently in unequivocal terms stated in their oral testimonies that when the deceased was proceeding in his two wheeler for buying food for PW2, he was voluntarily obstructed by the appellant from proceeding to the house of PW2 and thereafter, the attack was caused. These statements of the eye witnesses about the wrongful restraint caused by the appellant could not be discredited by the defence. In view of the same, the judgment of the trial court, finding the appellant guilty for the offence under Section 341 IPC, cannot be found fault with.
28. Likewise, from the statements of these eye witnesses, the charge against the appellant that he had used bad words in a public place, was not established beyond reasonable doubt and thereby, the trial court had acquitted the appellant from the charge of having committed the offence punishable under Section 294(b) IPC. Thus, we do not find any infirmity or illegality in such a finding and hence, the portion of the judgment, acquitting the appellant for the offence under Section 294(b) IPC, cannot be found fault with.
Page 21 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021
29. On the other hand, the appellant had committed the act without premeditation and in the heat of passion arising out of a sudden fight by causing a single cut injury. However, we have taken into consideration the weapon used by the appellant and the cut injury of about 39 cm in length extending from the neck of the deceased to his chest and therefore have no hesitation to hold that such a cut injury must have been caused by the appellant with an intention of causing such bodily injury as is likely to cause death. By laying down the circumstances pointed out in Pulicherla Nagaraju's case (supra), we have no difficulty in holding that such an act would squarely fall under the 4th exception to Section 300 IPC and thus, would be construed to be an act of culpable homicide and since the act of the appellant, by which the death was caused, was done with an intention of causing such a bodily injury as is likely to cause death, the appellant would therefore be liable to be punished under Section 304 Part-I IPC.
30. In the light of the above findings, the judgment of the trial court passed in S.C.No.58 of 2019 on the file of the Additional District and Sessions Judge, Dindigul District, insofar as it has found the appellant guilty for the offence under Section 302, is altered into Section 304 Part-I Page 22 of 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.260 of 2021 IPC. Consequently, the appellant is convicted and sentenced for the altered offence to rigorous imprisonment for a period of ten years and also to pay a fine of Rs.10,000/-, in default to further undergo imprisonment for a period of one year. The judgment of the trial court, acquitting the appellant for the offence under Section 294(b) IPC and the conviction under Section 341 IPC, for which the appellant was awarded a penalty of Rs.500/-, are confirmed.
31. The Criminal Appeal is partly allowed.
(M.S.R.,J.) (M.N.K.,J.)
13.12.2023
NCC:Yes
Index:Yes
Speaking order
hvk
To
1.The Inspector of Police,
Sanarpatti Police Station,
Sanarpatti, Dindigul District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Page 23 of 24
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).No.260 of 2021
M.S.RAMESH,J.
and
M.NIRMAL KUMAR,J.
hvk
Pre-delivery Judgment made in
Crl.A.(MD) No.260 of 2021
13.12.2023
Page 24 of 24
https://www.mhc.tn.gov.in/judis