Madras High Court
Senthilkumar @ Mahesh vs State Rep. By The on 19 August, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.08.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
and
THE HONOURABLE MR. JUSTICE V.S.RAVI
Crl.A(MD)No.95 of 2013
Senthilkumar @ Mahesh .. Appellant/Sole accused
Vs.
State rep. by the
Inspector of Police,
Suchindrum Circle,
Anjugramam Police Station,
Nagercoil.
(Crime No.353/2009) .. Respondent/Complainant
PRAYER
Criminal Appeal filed under Section 374 of Cr.P.C. against the
conviction and sentence, dated 18.12.2012, made in S.C.No.54 of 2010, by the
learned District and Sessions Judge, Kanyakumari Division.
For appellant : Mr.P.Andiraj
For respondent : Mr.T.Mohan,
Additional Public Prosecutor
:JUDGMENT
(Judgment of the Court was made by S.NAGAMUTHU, J.) The appellant is the sole accused in S.C.No.54 of 2010 on the file of the learned District and Sessions Judge, Kanyakumari Division at Nagercoil. He stood charged for the offences under Sections 294-B and 302 IPC. By judgment dated 18.12.2012, the trial Court acquitted the accused from the charge under Section 294-B IPC, but convicted him for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000/-, in default to undergo simple imprisonment for four years. 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;
(a) The deceased in this case was one Mr.Selva Simson. He was a resident of Pottalkulam Village, Kanyakumari District. He was running a tempo van to carry stones and sand for hire. On 17.10.2009, an offer came to the deceased to engage his tempo. But, the accused intervened and took the offer to one Mr.Chandran. That was not to the liking of the deceased as the accused had interfered with his business and his earnings. On 17.10.2009 at about 3.00 p.m. the deceased, PW1, PW2 and few others were siting in front of a CSI church. At that time, incidentally, the accused came in that way. On seeing him, the deceased called him and questioned him as to how he could divert his business offer which had come to him to Mr.Chandran. The accused replied for the same. This resulted in a wordy quarrel which went on for some time. In culmination of the quarrel, the accused rushed to his house, brought a knife and stabbed the deceased on the left side of his chest. The deceased fell down sustaining a single stab injury. The accused fled away from the scene of occurrence with knife.
(b) Immediately, PW1 and others took him to the Government Medical College Hospital at Aasaripallam. PW11 Dr.Ahamed Rafeek Meeran examined the deceased at 4.40 p.m. on 17.10.2009 and he found him dead. He noticed a single stab injury measuring 2 x 1 cm on the left side of the chest of the deceased. He forwarded the body to the mortuary and gave intimation to the Police.
(c) On getting the said intimation from the hospital, PW12 ? the Sub Inspector of Police, attached to Anjugram Police Station, rushed to the said hospital and recorded the statement of PW1 at 7.39 p.m. on 17.10.2009 and on returning to the Police Station at 8.30 p.m., he registered a case in Crime No.353 of 2007 under Sections 294-B and 302 IPC. He forwarded the FIR and the complaint to the Court through a Constable and then, handed over the Case Diary to the Inspector of Police for investigation.
(d) PW14, the then Inspector of Police took up the case for investigation at 9.30 p.m. on 17.10.2009. He proceeded to the place of occurrence and prepared an observation mahazar and a rough sketch in the presence of PW3 and another witness. Then, he recovered bloodstained earth and sample earth from the place of occurrence under Ex.P2 - Mahazar. Then he examined few more witnesses. On 18.10.2009 between 7.00 a.m. to 9.00 a.m. he conducted inquest on the body of the deceased and prepared Ex.P14 ? Inquest report. Then, he forwarded the body for postmortem.
(e) PW6 ? Dr.C.Velmurugan conducted autopsy on the body of the deceased on 18.10.2009 at 2.10 p.m. He noticed a single stab injury on the left side of the chest of the body measuring 4 x 3 x 10 cm. On opening thorax, he found that that injury pierced the left ventricle of the heart and lungs. The major blood vessels were also found cut. He opined that the death was due to shock and haemorrhage due to the said injury.
(f) Continuing the investigation, PW14 arrested the accused at 1.30 p.m. on the same day i.e., on 18.10.2009. On such arrest, he gave a voluntary confession in which he disclosed that he had hidden the knife on the backyard of his house. In pursuance of the said disclosure statement, he took PW14 and PW4 to his house from where he produced the weapon - MO.1. He also produced a shirt MO.4. PW14 recovered the same in the presence of witnesses and he examined the doctors, collected medical records and finally laid charge sheet against the accused.
(g) Based on the above materials, the trial Court framed charges, as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution as many as 14 witnesses were examined, 17 documents were exhibited and 9 material objects were marked.
(h)Out of the said witnesses, PWs.1 & 2 are the eyewitnesses. PW1 is the brother of the deceased. PW2 is the brother-in-law of the deceased. They have vividly spoken about the entire occurrence. PW3 has spoken about the mahazar and recovery of bloodstained earth and sample earth from the place of occurrence. PW4 is the witness for the arrest of the accused, confession given by him and the consequential recovery of MO-1 - knife and MO.4 - Shirt. He has spoken about all these facts. PW5 is the driver of the car in which the deceased was taken to the Hospital. He has spoken about the same. PW6 - Dr.Velmurugan has spoken about the postmortem conducted and the opinion given by him. PW7 is the Constable, who received the intimation from the hospital and forwarded the same to the Police Station concerned. PW8 is the constable, who carried the FIR from the Police station to the Court. The FIR was handed over to the learned Magistrate at 11.30 p.m. on the same day.
(i) PW9 is a Constable, who carried the body for postmortem examination. PW10 is the photographer, who took photographs of the deceased at the place of occurrence. He has also spoken about the same. PW11 is the doctor, who examined the deceased and declared him dead. He has also spoken about the intimation given by him to the Police Station. PW12 is the Sub Inspector of Police, who registered the case on getting complaint from PW1. He has spoken about the registration of the case. PW13 ? the Scientific Assistant has spoken about the chemical analysis conducted on the material objects. According to him, MO.1 was not sent for chemical examination. PW14 has spoken about the investigation done by him.
(j) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., he denied the same as false. However, on his side, no witness was examined, but one document viz., the death intimation of the deceased dated 17.10.2009, was marked as Ex.D1. The defence of the accused was a total denial.
(k) 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.
3. We have heard the learned counsel for the appellant and the learned Additional Public prosecutor appearing for the State. We have also perused the records carefully.
4.The learned counsel for the appellant would submit that the presence of PWs.1 & 2 is doubtful. He would further submit that since they are closely related to the deceased, their evidences require very close scrutiny. He would further submit that the medical evidence does not corroborate the eyewitness account. The learned counsel would next submit that even assuming that the accused had caused the said injury, the offence committed by him would not fall under Section 302 IPC and the same would fall only under Section 304(i) IPC.
5.The learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, there is no reason to reject the evidences of PWs.1 & 2, who were present along with the deceased at the place of occurrence. He would further submit that the medical evidence duly corroborates the eyewitness account. So far as the offence committed, the learned Additional Public Prosecutor would submit that since the accused went to the place of occurrence armed with a knife with premeditation, the offence would squarely fall only under Section 302 IPC. Thus, according to the learned Additional Public Prosecutor, the conviction and sentence imposed by the trial Court does not warrant interference at the hands of this Court.
6. We have considered the above submissions.
7.According to the case of the prosecution, the occurrence had taken place just in front of a church. PWs.1 & 2 were very much present there. The very fact that PW1 and PW2 had taken the deceased to the hospital would go to show that they would have been present at the time of occurrence. A close scrutiny of the evidences of PW1 & PW2 would clearly go to show that there is no infirmity warranting any doubt regarding their veracity. We are fully convinced that these two witnesses have given evidence in a very cogent manner which deserves only acceptance. We do not find any contradiction between the medical evidence and the eyewitness account. The Doctors found that there was a single stab on the chest. There is no delay in the FIR also. The injured was taken to the hospital, immediately, after the occurrence. All these facts would clearly go to establish that it was only this accused who caused the fatal injury on the deceased.
8.Now, the immediate question is as to what is the offence that has been committed by the accused by his act. The learned counsel would submit that there was no premeditation. We find force in the said argument. According to PWs.1 & 2, the deceased and PWs.1 & 2 were sitting in front of the church. At that time, incidentally, by chance, the accused came to the said place. As a matter of fact, he did not come to that place to meet the deceased, but he was actually going through that way to some other place. Even the accused had not first spoken with the deceased. It was only the deceased called him and questioned him as to how he could divert the business offer which had come to him to Mr.Chandran. This only culminated into a big quarrel which went for some time. We are able to visualise that in such a quarrel, certainly, the deceased would have used abusive words. Though PWs.1 & 2 have not specifically stated about the words used by the accused, it is inferable that the deceased would have used abusive words, by which the accused would have lost his power of self-control and aggravated by the said provocation which was so sudden and grave, he immediately rushed to his house, which was few feet away from the place of occurrence, came back with a knife and made a single stab on the deceased and ran away from the place of occurrence. Thus, we hold that the accused had no premeditation to kill him. He had no intention also to kill him. He was driven by the provocation which was grave enough and also so sudden, and out of the said grave and sudden provocation, he had caused a single stab on the chest. The injury caused on the chest of the deceased cannot be said to be unintended. Certainly, it is intended one, because that was the injury aimed at by the accused. This injury is sufficient in the ordinary course of nature to cause the death. Thus, the act of the accused would fall under the third limb of Section 300 IPC, but, it falls under exception one to Section 300 IPC. Therefore, the act of the accused is not murder, but it is only a clubable homicide not amounting murder. The act of the accused, therefore, would fall under the second limb of Section 299 IPC and thus, he is liable to be punished under Section 304(i) IPC.
9. Now, turning to the quantum of punishment, the learned counsel would submit that at the time of occurrence, he was hardly 31 years and married, having a female child and he is poor, doing coolie work. He has to take care of the aged parents also. Having regard to these mitigating circumstances and the aggravating circumstances, by way of striking a balance, in our considered view, sentencing him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for four weeks would meet the ends of justice.
10. In the result, this Criminal Appeal is partly allowed. The conviction and sentence imposed on the appellant/accused under Section 302 IPC is set aside and instead, he is convicted under Section 304(i) IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for four weeks.
To
1.The District and Sessions Judge, Kanyakumari Division at Nagercoil.
2.The Inspector of Police, Suchindrum Circle, Anjugramam Police Station, Nagercoil.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..