Madras High Court
Ranjith Kumar vs The State Rep By on 18 November, 2019
Equivalent citations: AIRONLINE 2019 MAD 1781
Author: M.M.Sundresh
Bench: M.M.Sundresh
Crl A No 107 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.11.2019
Coram
The Hon'ble Mr. Justice M.M.SUNDRESH
and
The Hon'ble Mr. Justice RMT. TEEKAA RAMAN
Crl.A.No. 107 of 2018
Ranjith Kumar ... Appellant
-vs-
The State Rep by
The Inspector of Police,
Pernambut Circle,
Melpatti Police Station. ... Respondent
Appeal filed under Section 374(2) Cr.P.C. against the judgment of
the I Additional District and Sessions Judge, Vellore in S.C.No. 127 of
2016, dated 21.12.2017.
Mr.Gopinath, Senior Counsel
For Appellant :
for Mr.K.S.Rajagopalan
For Respondent Mr.K.Prabhakar,
:
Addl. Public Prosecutor
Page 1 of 14
http://www.judis.nic.in
Crl A No 107 of 2018
JUDGMENT
(Judgment of the Court was delivered by M.M.SUNDRESH, J.) Appellant is the sole accused in S.C.No.127 of 2016 on the file of the I Additional District and Sessions Judge, Vellore. He stood charged for the offence punishable under Section 302 IPC and convicted accordingly.
2.PROSECUTION VERSION IN BRIEF:
2.1. The appellant and the deceased were lovers. Arrangements were made for the marriage with the concurrence of both the families.
On 09.03.2016, the appellant was seen along with the deceased at about 3 p.m., and both of them went to the house of the deceased. The deceased told the appellant that she was actually in love with somebody else and therefore, he should forget her. Enraged over it, the appellant picked up quarrel with the deceased and strangulated her. Thereafter, he called P.Ws. 5 and 6 and took the deceased along with P.Ws.4 and 5 to P.W.11, a siddha doctor. As P.W.11 declined to treat the deceased, she was taken to the Government Hospital. Having found that the deceased was no more, he accordingly brought back to her house.
Page 2 of 14 http://www.judis.nic.in Crl A No 107 of 2018 2.2. P.W.1 is the author of the complaint given under Ex.P1 registered under Ex.P12. P.W.15 is the Sub Inspector of Police, who registered the First Information Report. P.W.16 is the investigating officer who conducted the inquest, prepared the observation mahazar, examined the witnesses and thereafter filed the final report while making arrangements to send relevant documents to the court.
2.3. Before the Trial Court, the prosecution examined 16 witnesses and marked Exs.P1 to P14. No witness has been examined on behalf of the appellant nor any document was marked. Four material objects in M.Os.1 to 4 have been produced before the Court. The appellant was placed with incriminating materials. While denying the offence committed, the appellant has stated that the evidence of P.W.5 and P.W.11 was correct. The trial Court after analysing the materials available before it accordingly convicted the appellant.
3.WITNESSES AND EXHIBITS:
3.1. P.W.1 is the mother of the deceased. She has deposed that the appellant and the deceased were in relationship with each other.
After coming to know of the occurrence, she gave a complaint under Ex.P1. It is her further evidence that the appellant and P.W.5 took the Page 3 of 14 http://www.judis.nic.in Crl A No 107 of 2018 deceased to the hospital and thereafter brought her back upon knowing that the deceased was no more. It is her further evidence that she did not know as to whether it was the appellant who called her over phone and informed.
3.2. P.W.2 is the neighbour of the deceased. He has turned hostile. However, P.W.2 has stated that he saw the deceased along with the appellant on 09.03.2016 between 3.30 and 4 p.m. 3.3. P.W.3 is the grandmother of the deceased. She also spoke about the fact that she found the deceased lying dead and she was brought back by the appellant and P.Ws.4 and 5.
3.4. P.W.4 is the auto driver who took the deceased along with the appellant and P.W.5. He spoke in tune with the case of the prosecution with respect to the deceased being taken to P.W.11 and thereafter to the hospital.
3.5. P.W.5 is the neighbour who accompanied the appellant and the deceased to both places as stated.
3.6. P.W.6, though turned hostile, in the chief examination, has deposed that the appellant asked him to go inside the house of the deceased. He informed P.W.5 about the occurrence thereafter. He was Page 4 of 14 http://www.judis.nic.in Crl A No 107 of 2018 also treated as hostile.
3.7. P.W.7 is the witness who speaks about the deceased being taken by the appellant along with him at 3 p.m. on 09.03.2016.
3.8. P.W.9 is the Village Administrative Officer before whom the confession has been given followed by recovery under Ex.P4 by which M.O.1 has been recovered. However, this evidence of P.W.9 is of variance over the evidence of P.W.12 doctor who conducted post mortem and he has stated that even at 11 a.m. on 10.03.2016 which is much before the so called recovery, M.O.1 has been shown to him.
3.9. P.W.11 is the siddha doctor before whom the deceased was brought by P.Ws.4 and 5 along with the appellant. On his advice, the deceased was taken to the hospital. P.W.12 is the doctor who conducted post mortem pursuant to the request under Ex.P6. The post mortem certificate has been marked as Ex.P7. He has deposed that it is possible that the deceased would have died of strangulation by using M.O.1. In his cross examination, he has stated that he was indeed shown M.O.1 at about 11 a.m. on 10.03.2016.
3.10. P.W.13 is the witnesses who signed Exs.P9 and P10 Page 5 of 14 http://www.judis.nic.in Crl A No 107 of 2018 observation mahazars. P.W.16 is the investigating officer who prepared the observation mahazar, rough sketch under Ex.P13 and made ready the inquest report under Ex.P14. Thereafter, he arrested the appellant on 10.03.2016 at about 2 p.m. After completing the investigation, he filed the final report on 19.03.2016.
4. SUBMISSIONS:
4.1.Learned senior counsel appearing for the appellant would submit that there is a doubt with respect to recovery. There appears to be some contradiction between the evidence of P.Ws.9 and 16 as against P.W.12. Motive has not been proved. There is no material to show that the deceased was in relationship with somebody else and she told the appellant to forget her. In any case, the offence punishable under Section 302 IPC is not made out. There was no intention on the part of the appellant to commit the offence. His subsequent conduct will also have to be seen in the light of Section 8 of the Indian Evidence Act. If this Court is not willing to accept the contentions on merit, lesser punishment will have to be rendered by treating the offence as the one punishable under Section 304 (II) IPC.
As the appellant was only 21 years old at the relevant point of time, this Court may consider lesser punishment by taking note of the Page 6 of 14 http://www.judis.nic.in Crl A No 107 of 2018 mitigating circumstances.
4.2. Learned Additional Public Prosecutor appearing for the State submitted that the occurrence took place in the residence of the deceased. Even during questioning, the appellant has admitted the presence of the witnesses including P.Ws.5 and 11. He has further stated that the statements given by them are true. The witnesses have also spoken about the presence of the appellant along with the deceased prior to the occurrence and thereafter. Therefore, it is for the appellant to dispel the suspicious circumstances as mandated under Section 106 of the Indian Evidence Act. Since it is a case of strangulation, the Trial Court rightly convicted the appellant under Section 302 IPC.
5.DISCUSSION:
5.1. P.W.7 has deposed that she saw the appellant and the deceased at 3 p.m. on 09.03.2016. It is her further evidence that the appellant took the deceased along with him. P.W.2 though turned hostile has spoken about the presence of the deceased and the appellant together in her house. Similarly, P.Ws.4 to 6 have stated that the appellant took their help and accordingly carried the deceased along with P.Ws.4 and 5. P.W.11 has further stated that the deceased Page 7 of 14 http://www.judis.nic.in Crl A No 107 of 2018 was indeed brought to him by the appellant and P.Ws.4 and 5.
Therefore, from the abovesaid evidence, there is no doubt in our mind, as admitted by the appellant himself, during questioning that it is he who brought the deceased from her house in unconscious stage. Hence we have no hesitation in holding that the appellant has not discharged the initial onus. Admittedly, the occurrence took place in the residence of the deceased and in the presence of the appellant. It is nobody's case including that of the appellant that any other person was present. P.W.12 the doctor who conducted post mortem has also deposed that the death has occurred due to strangulation. Merely because P.W.12 deposed that M.O.1 was shown to him even much prior to the confession statement, the case of the prosecution cannot be rejected in toto. This might make us to disbelieve the recovery made. As stated, the appellant himself has admitted the primary facts.
5.2. Having come to the abovesaid conclusion, the other question is as to whether the appellant is liable to be punished for the offence under Section 302 IPC or 304 (I) IPC or 304(II) IPC as the case may be. In this connection, we are of the view that the Trial Court has committed an error in not exploring the possibility as to whether the offence under Section 304 (I) or 304(II) IPC would be made out or Page 8 of 14 http://www.judis.nic.in Crl A No 107 of 2018 not. In fact, it is the primary duty of the Court to examine in this aspect. We do not find any intention on the part of the appellant, especially when the case of the prosecution itself is based upon the fact that the appellant along with other witnesses took the deceased in an auto rickshaw and tried to save her. Therefore, the subsequent conduct of the appellant is a factor to be considered in coming to the conclusion that his intention was not to commit murder. We are also conscious of the fact that we are dealing with a case of circumstantial evidence. The very prosecution case itself is that the appellant and the deceased were in love with each other and there was no objection on the part of both the families and in fact arrangements were being made to conduct the marriage. Therefore, what actually happened was known only to the deceased and the appellant. No other witness has spoken about the prior motive and strained relationship between the appellant and the deceased. The question as to whether the case would come under Section 304 (I) or 304(II) IPC has been considered at length by one of us (MMSJ) in Crl.A.No.191 of 2017 dated 29.07.2019. There appears to be only small distinction which to be applied from case to case. We would only like to reproduce the following paragraphs:
14. A culpable homicide would arise when a death is Page 9 of 14 http://www.judis.nic.in Crl A No 107 of 2018 caused by a person on the other with an element of culpability through his act. While all such acts would come under Section 299 IPC, Section 300 IPC deals with culpable homicide amounting to murder. There are three limbs of culpable homicide being involved under Section 299 IPC as against four under Section 300 IPC.
15. Thus, culpable homicide is a genus and murder is one of its specie. When a person commits culpable homicide by his act, which causes death, with the intention of causing such bodily injury, it becomes the culpable homicide per se and therefore not amounting to murder. The second limb has to be seen in comparison with the third limb of Section 300 IPC which is as under.
“With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.”
16. Therefore, the second limb of Section 299 IPC speaks about bodily injury, which is likely to cause death, while the third limb of Section 300 IPC deals with sufficiency of the injury in the ordinary course of nature to cause death. When once the offence committed comes within the purview of second limb of Section 299 IPC, then the punishing Section would be Section 304(Part-I) IPC. We may note that we are dealing with the intention of the offender as against his knowledge in which case 304(Part-II) IPC would arise. Hence, Page 10 of 14 http://www.judis.nic.in Crl A No 107 of 2018 it comes within the third limb of Section 299 IPC or fourth limb of Section 300 IPC along with the special exceptions.
17. The existence of intention is to be gathered from the facts surrounding a case. Some of the factors to be kept in mind are gravity of motive, extent and location of injuries, nature of weapon used and the force involved, place of occurrence and persons in whose presence it was done. Thus, the question as to whether the case would come within the purview of Section 299 or 300 IPC and punishable under Section 304 (Part-I) or (Part-II) IPC as against 302 IPC depends upon factors governing. On the aforesaid issue, we are inclined to rely upon the following passage of the Division Bench of this Court in Ganesan Vs. State ((2013) 1 CTC
372).
“28. Now, we will examine as to whether the said act of the accused falls under the first limb of Section 299 I.P.C. or the first limb of Section 300 I.P.C. Both these limbs postulate "intention to cause the death". Intention is different from "motive" or "ignorance" or "negligence". Intention requires something more than the mere foresight of the consequences. Intention is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving the conceived end. Thus, in the case of intention mental faculties are projected in a set of direction. But, knowledge is a bare awareness of the likely consequences. Whether, in a given case, the accused had the "intention" or "knowledge" is a question of fact (vide. Jaiprakash Vs. State of Page 11 of 14 http://www.judis.nic.in Crl A No 107 of 2018 Delhi Administration - 1991 (2) SCC 32). Intention is a fact to be inferred from various other facts and circumstances involved in the given case, such as, the gravity of the motive, the gravity of the injury/injuries, number of injuries, seat of the injury/injuries, the force used, the weapon used, etc.”
6.CONCLUSION:
6.1.After taking note of the celebrated judgment of the Apex Court in State of Andhra Pradesh Vs. Rayavarapu Punnayya and another ((1976) 4 Supreme Court Cases 382) as approved in the subsequent decision in Rampal Singh Vs. State of Uttar Pradesh ((2012) 8 Supreme Court Cases 289 dealing with the subtle difference between Sections 298 and 300 IPC, we accordingly hold that this case would come under the purview of Section 304(II) IPC. Thus, the facts governing would lead us to come to the conclusion that the appellant is to be convicted and sentenced for the offence under Section 304(II) IPC. Taking note of that fact that the appellant was only 21 years old at the relevant point of time and the case being based upon circumstantial evidence with no further evidence on motive or the strained relationship between the appellant and the deceased, we are inclined to modify the sentence to that of seven years rigorous imprisonment.
Page 12 of 14
http://www.judis.nic.in Crl A No 107 of 2018 6.2. In the light of the above discussion, the criminal appeal is partly allowed and the conviction and sentence imposed on the accused/appellant under Section 302 I.P.C. by the Trial Court are set aside and instead, he is convicted for the offence under Section 304 (II) I.P.C. and sentenced to undergo rigorous imprisonment for a period of seven years. The period of incarceration undergone by the appellant is directed to be set off.
(M.M.S.,J.) (T.K.R.,J.)
18 .11.2019
Index : Yes
mmi
To
1. The Presiding Officer,
I Additional District and Sessions Judge,
Vellore.
2. The Inspector of Police,
Pernambut Circle,
Melpatti Police Station.
3. The Public Prosecutor,
High Court, Madras.
Page 13 of 14
http://www.judis.nic.in
Crl A No 107 of 2018
M.M.SUNDRESH, J.
and
RMT. TEEKAA RAMAN, J.
mmi
Crl.A.No. 107 of 2018
18.11.2019
Page 14 of 14
http://www.judis.nic.in