Madras High Court
C.Arockiyasamy vs The State Of Tamil Nadu on 8 October, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.10.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
and
THE HONOURABLE MR. JUSTICE V.S.RAVI
Crl.A(MD)No.526 of 2006
C.Arockiyasamy .. Appellant/
Sole accused
Vs.
The State of Tamil Nadu,
rep. by the Inspector of Police,
Salai Gramam Police Station,
Sivagangai District.
(Crime No.51 of 2005) .. Respondent/
Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of Cr.P.C. against the
conviction and sentence, dated 11.10.2006, made in S.C.No.2 of 2006, by the
learned Sessions Judge, Sivagangai.
For appellant : Mr.V.Kathirvelu,
Senior counsel for
Mr.V.Malaiyendran
For respondent : Mr.K.S.Duraipandian,
Additional Public Prosecutor
:JUDGMENT
(Judgment of the Court was made by S.NAGAMUTHU, J.) The appellant is the sole accused in S.C.No.2 of 2006 on the file of the learned Sessions Judge, Sivagangai. He stood charged for the offence under Sections 302 and 307 IPC. By judgment dated 11.10.2006, the trial Court convicted him under both the charges and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for one year for the offence under Section 302 IPC and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for one year for the offence under Section 307 IPC. 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.Sesu. He was a member of the Village Panchayat Board of Uthayanoor Village in Sivagangai District. PW1 and PW2 are wife and husband respectively. PW3 is a relative of PWs.1 and 2. They were all residing in the same Village. The accused was also residing in the same village. All of them were agriculturists by profession.
(b) In Uthayanoor Village, there was a thrashing floor which was common to all. The agriculturists having land in that area used the same for the purpose of drying agricultural products. The deceased and PW2 had once entered into an agreement with the Village Panchayat Board to make some constructions on the said common thrashing floor. This was opposed by the accused as he claimed right to use the same for the purpose of drying the agricultural products from his field. This resulted in enmity between the deceased and the accused.
(c) On 01.04.2015, the accused had spread chillies on the said common floor for drying the same. PW2 wanted the accused to remove the same for drying paddy, but the accused refused to do so. He told the deceased to persuade the accused to remove the chillies and to leave vacant floor to PW2 for the purpose of drying paddy. The deceased and PWs.1 to 3 had gone to the house of the accused at around 9.45 p.m. The deceased, being the member of the Village Panchayat, called the accused from his house. The accused came out. They all reached the common thrashing floor. There the deceased wanted the accused to remove the chillies and to leave the thrashing floor vacant to PW2 for drying paddy. This resulted in a quarrel. The quarrel went on for ten minutes. The accused suddenly rushed to his house and came to the thrashing floor again. The quarrel continued. In culmination of the quarrel, it is alleged that the accused took out a knife from his waist and repeatedly stabbed the deceased. When PW2 intervened, he stabbed him also repeatedly. PWs.1 and 3 witnessed the occurrence but, being ladies, they could not prevent the accused from stabbing the deceased and PW2. After stabbing the deceased and PW2, the accused fled away from the scene of occurrence. PWs.1 and 3 cried for help. The villagers gathered. The deceased died instantaneously succumbing to the injuries. PW1 with the help of others took PW2 to the hospital.
(d) PW4 - Dr.Asmabegum examined PW2 at 11.15 p.m. on 01.04.2005. At that time, PW2 was unconscious. PW1 told the doctor that PW2 was attacked by aruval by a known person at 10.00 p.m. in the field. PW4 found the following injuries on PW2:
?1) An incised wound 10 cm x 10 cm x 10 cm seen on the left cheek extending from angle of mouth to angle of mandible. Muscles, nerves, blood vessels exposed. Bleeding present.
2)An incised wound 5 cm x 4 cm x 2 cm seen on right side chest.
3)An incised wound 2 cm x 1 cm x 1 cm seen over abdomen above (MC).
4) An incised wound 4 cm x 3 cm x 2 cm seen on right side chest.
5)A lacerated wound 1 cm x 1 cm x 1 cm seen on right palm of right hand.?
Ex.P2 is the accident register. Then, she admitted him as inpatient and gave intimation to the Police.
(e) On receiving intimation, PW11 rushed to the hospital and recorded the statement of PW1 at 1.30 a.m. on 02.04.2005. On returning to the Police Station, he registered a case in Crime No.51 of 2005 under Sections 302 and 307 IPC. Ex.P1 is the complaint. Ex.P15 is the FIR. He forwarded both the documents to the Court and handed over the investigation to the Inspector of Police.
(f) PW12 ? the then Inspector of Police, took up the case for investigation at 2.00 a.m. on 02.04.2015. He went to the place of occurrence and prepared an observation mahazar and a rough sketch in the presence of PW2 and another witness. He recovered the bloodstained earth and sample earth from the place of occurrence in the presence of witnesses. Then, he conducted inquest on the body of the deceased and forwarded the same to the hospital for postmortem.
(g) PW5 ? Dr.Meenakshisundaram conducted autopsy on the body of the deceased on 02.04.2005 at 8.30 a.m. He found the following injuries:
?External Injuries: There are about 5 stab injuries on the back.
1)A stab wound on the back of the right shoulder horizontal of about 5 cms length x + cm breath x 10 cms depth, the direction of the wound goes obliquely upwards beyond the back of the neck, piercing the deeper structures, muscles, nerves, arteries veins, (Carotids and jugular veins) with multiple blood clots seen inside the wound.
2)A stab wound on the right shoulder below wound No.1, vertically of about 5-1/2 cm length x + breadth x 8 cms depth. The direction of the wound is deep injuring muscles, nerves, arteries.
3)A stab wound, horizontal at the centre of the (torn) over the vertebral body of about 5 cm x + cm x 4-1/2 cm depth. Wound is deep, injuring vertebral body with blood clots seen.
4)A stab wound on the back of the left shoulder, horizontal, 5 cm length x s cm breadth x 10 cms depth. The wound is obliquely upwards, goes beyond the back of the neck, piercing deeper structures, muscles, nerves, jugular veins, arteries with multiple blood clots seen inside the wound.
5)A stab wound on the back of the left side below wound 3 x 4, horizontal 5 cms x + cm x 8 cm depth, the wound in deep piercing the deeper structures muscles, nerves blood vessels, blood clots seen inside the wound.
6) A stab wound on the left wrist 5 cms x 1 cm x 4 cm depth, piercing the tendons and blood vessels.?
Ex.P4 is the postmortem certificate. He gave opinion that the deceased would appear to have died of shock and haemorrhage due to the injuries to the vital organs, between 8 to 24 hours prior to autopsy.
(h) PW12 examined PW2 in the hospital and recorded his statement. The accused surrendered before the Court. PW12 took the Police custody of the accused on 06.04.2005 on the orders of the learned Magistrate. While in custody, he gave a voluntary confession in the presence of PW7 and another witness, in which he disclosed the place where he had hidden the knife. In pursuance of the same, he took the Police and witnesses to his house and took out the knife from the hide out. The same was recovered under a mahazar. Then, he forwarded the accused to the Court for judicial remand and handed over the material objects to the Court. He gave a request to the Court for forwarding the material objects for chemical examination. The report revealed that there was human blood on all the material objects, including MO.1 knife. PW12 collected the medical records and examined the doctors. Then, he handed over the investigation to his successor PW13. PW13 continued the investigation and finally, laid charge sheet against the accused.
(i) Based on the above materials, the trial Court framed two charges under Sections 302 and 307 IPC. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 13 witnesses were examined and 21 documents and 5 material objects were marked.
(j) Out of the said witnesses, PWs.1 to 3 are the eyewitnesses, who have spoken about the occurrence in a vivid fashion. PW4 has spoken about the injuries found on PW2 and the treatment given to him. PW5 has spoken about the postmortem conducted by him on the body of the deceased and his final opinion regarding the cause of death. PW6 has spoken about the preparation of the observation mahazar and rough sketch, and the recovery of the material objects from the place of occurrence. PW7 has spoken about the confession said to have been given by the accused to the Police and the consequential recovery of MO.1 ? Knife. PW8 is the constable, who has stated that he carried the dead body to the hospital for postmortem. PW9 has stated that he carried the FIR from the Police Station and handed over the same to the learned Judicial Magistrate at 2.59 a.m. PW10 is the Head Clerk of the Magistrate Court, who has stated that he forwarded the material objects for chemical examination on the orders of the learned Magistrate. PW11 has spoken about the registration of the case on the complaint of PW1. PWs.12 and 13 have spoken about the investigation done.
(k) When the above incriminating materials were put to the accused, he denied the same as false. However, he did not choose to examine any witness and nor to mark any document on his side. His defence was a total denial.
(l) Having considered all the above materials, the trial Court convicted him under both the charges and accordingly, punished him. That is how he is before this Court with this appeal.
3. The learned senior counsel appearing for the appellant would submit that the earliest version in the case stated by PW1 has been suppressed by the prosecution and in its place, Ex.P1 has been substituted as an after-thought. He would further submit that PW1 had told PW4, when she had taken PW2 to the hospital, that PW2 was attacked by a known person with aruval in his field, whereas, according to the prosecution, the accused stabbed him with a knife in a thrashing floor. The learned senior counsel would submit that this contradiction has not been explained away by the prosecution. He would next submit that since the occurrence had taken place during night hours, that too in the thrashing floor, there would have been no light at all to notice the assailants by even the injured witness. Thus, according to the learned senior counsel, the prosecution has failed to prove the case beyond reasonable doubts. He would further submit that even assuming that the prosecution has proved that it was this accused who caused the death of the deceased and caused the injuries on PW2, the said act of the accused would not fall under Sections 302 and 307 IPC. According to him, the act of the accused would fall only under Section 304(i) and 324 IPC.
4. The learned Additional Public Prosecutor would, vehemently, oppose this appeal. According to him, PWs.1 to 3 are natural witnesses and their presence cannot be doubted at all. He would further submit that PW2 is the injured eyewitness and there are no reasons to reject his evidence. He would next submit that the medical evidence duly corroborates the eyewitnesses account. He would add that the inconsistencies pointed out by the learned senior counsel appearing for the appellant are immaterial, if one goes by the clear eyewitness account of PWs.1 to 3. He would further submit that the recovery of MO.1 - knife at the instance of the accused would also further strengthen the case of the prosecution. Thus, according to him, the prosecution has clearly proved the case against the accused beyond reasonable doubts and the trial Court was right in convicting him under Sections 302 and 307 IPC.
5. We have considered the above submissions.
6. The occurrence had taken place in the thrashing floor. It is not as though the thrashing floor is situated far away from the house of the accused. The rough sketch marked as Ex.P16, which has not been disputed by the accused, would go to show that the thrashing floor is situated just opposite to the house of the accused. The distance between the actual place of occurrence and the house of the accused is hardly 100 meters, as shown in the rough sketch. Now, it is the case of the prosecution that PWs.1 to 3 and the deceased had gone to the thrashing floor. The purpose of their visit was to make a request to the accused to remove the chillies so as to allow PW2 to use the thrashing floor. From the thrashing floor only the deceased had called the accused. The accused came out of his house and he reached the thrashing floor. In the thrashing floor, in the capacity of the member of the Village Panchayat, the deceased had requested the accused to remove the chillies. That resulted in a quarrel, in which only the accused returned to his house and came with a knife and stabbed him as well as PW2. Thus, the presence of PWs.1 to 3 cannot be doubted at all. More particularly, the presence of PW2, who is the injured eyewitness cannot be doubted. Further, it is not as though the injuries sustained by PW2 were minor or superficial injuries. The injuries were all long size cut injuries. The fact that PW2 sustained injuries in the very same occurrence has not been disputed by the accused at all. It is too difficult to believe that an injured witness, who has suffered such serious injuries, would have omitted the real assailants with a view to implicate the accused falsely. Thus, we do not find any reason to reject the evidence of PWs.1 to 3 at all. From the evidence of PWs.1 to 3 the prosecution has clearly established that it was this accused who caused the injuries on the deceased as well as on PW2.
7. The learned senior counsel for the appellant/accused would submit that at the earliest point of time, PW1 had told the doctor that PW2 was attacked with aruval by one known person in the field, whereas, according to the case of the prosecution, the occurrence was in the thrashing floor and the attack was made with a knife. In our considered view, this contradiction may, at the most, go to make the evidence of PW1 unbelievable. But, on that score, we cannot reject the eyewitness account of PW2, who is an injured eyewitness. We would hasten to add that on that score, we do not say that we are inclined to reject the entire evidence of PW1. As we have already concluded, the presence of PW1, at the place of occurrence, has been clearly established by the prosecution. We only say that the above contradiction is a minor contradiction. When her husband (PW2) was unconscious and PW2 was struggling for life in the hospital in a critical position, she would have given some statement which is now found to be inconsistent. But, on that score, we cannot reject the entire evidence of PW1.
8. The learned senior counsel would submit that PW1 has admitted that even before they proceeded to the hospital, the Police intercepted, to whom some information was passed, whereas PW11 has stated that when he was on bundobust duty, he received an information about the occurrence. The learned senior counsel would submit that that the information, which was passed on to PW11, at the earliest point of time, has been suppressed. This argument, though attractive, does not have any force, because some body, who came to the place of occurrence, would have informed the Police over phone about the occurrence, but that information cannot be taken as a full-fledged statement so as to register a case. Thus, this argument of the learned senior counsel deserves only to be rejected.
9. The learned senior counsel would next contend that assuming that it was this accused, who had caused injuries on the deceased as well as on PW2, the said act of the accused would not make out an offence under Sections 302 and 307 IPC. Certainly, we find some force in the said argument. It is the positive case of the prosecution that the accused was in his house and PWs.1 to 3 and the deceased had gone to the thrashing floor, from where the deceased called the accused to the thrashing floor. The accused, admittedly, came to the thrashing floor and at that time, the deceased wanted him to remove chillies, which had already been spread by the accused. One could imagine that at 9.45 p.m., it would not have been possible for the accused to readily accept the said demand. This resulted in a quarrel. The eyewitnesses have admitted that the quarrel went on for ten minutes. It was only at that time, the accused took out the knife from his waist and stabbed the deceased. But, PW2 has stated that the accused went to the house and came with a knife and then stabbed. We find it difficult to believe the version of PW2 that he went to his house and came with a knife and then, stabbed, because PW1 has stated that the knife was already kept in his waist. It is quite natural that the village people, that too agriculturists, would carry knife in the waist. During quarrel, the accused would have been provoked by the deceased and only out of provocation, he had taken the knife and caused injuries on the deceased and PW2. The act of the accused in causing the death of the deceased would squarely fall under Section 300 IPC. At the same time, it would fall under first exception to Section 300 IPC. For committing the death of the deceased, the accused is liable to be punished only under Section 304(i) IPC.
10. So far as the injury caused on PW2 is concerned, the accused has no premeditation. There was no strong motive. He never aimed at PW2. The accused, out of provocation, having lost his self-control, caused injuries on the deceased. PW2 intercepted, in which he sustained injury. Thus, in our considered view, the act of the accused would not satisfy any one of the limbs of Section 299 IPC. Therefore, the act of the accused would not amount to attempt to murder. At the most, he is liable to be punished only for causing hurt.
11. The next question is as to whether the injuries caused by the accused on PW2 was grievous in nature, as defined under Section 320 IPC. The learned senior counsel would submit that as per the medical evidence, the injuries sustained by PW2 were simple in nature. In this regard, we would like to point out that there is a vast difference regarding the nature of injuries in medical and the legal parlance. An injury, which may be simple in nature in the opinion of a medical professional, may be a grievous hurt in terms of Section 320 IPC. Sub Section 8 of Section 320 IPC states that if an injury is in the nature of endangering human life, then, the said injury is grievous in nature. Here, in this case, going by the nature of the injuries sustained, the situs of the injuries and the fact that PW2 was unconscious after receiving the injuries and that he was in the hospital for a long number of days, we are of the view that the injuries sustained by him were in the nature of endangering human life. Fortunately, PW2 was saved by the medical intervention. Thus, we hold that the injuries caused by the accused on PW2 were all grievous hurt as defined under Section 320 IPC. Since the weapon used by him was a dangerous weapon, he is liable for punishment under Section 326 IPC.
12. Now, turning to the quantum of sentence, the learned senior counsel would submit that the accused is a poor man and he is 63 years old. He has a big family to look after. He has no bad antecedents. After the occurrence also, he has not committed any offence. The occurrence was not a premeditated one. It had happened at the spur of the movement on account of the lose of his self control due to the provocation caused by the deceased. Having regard to these mitigating as well as aggravating circumstances, with a view to strike a balance between these two, we are inclined to sentence the accused 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 for the offence under Section 304(i) IPC and to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for four weeks, for the offence under Section 326 IPC.
13.In the result, this Criminal Appeal is allowed in the following terms;
(a) The conviction and sentence imposed against the appellant/accused under Section 302 IPC in S.C.No.2 of 2006 is set aside, 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.
(b) The conviction and sentence imposed under Section 307 IPC against the appellant/accused in S.C.No.2 of 2006 is set aside, instead he is convicted under Section 326 IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for four weeks.
(c) It is directed that the sentences shall run concurrently. The period of sentence already undergone by the accused shall be set off under Section 428 Cr.P.C. The bail bond, if any, executed by him shall stand cancelled. The fine amount, if any, already paid by the accused shall be adjusted.
14. The trial Court is directed to take steps to secure the accused and to commit him in prison so as to serve out the remaining period of sentence.
To
1.The Sessions Judge, Sivagangai District.
2.The Inspector of Police, Salai Gramam Police Station, Sivagangai District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..