Madras High Court
Singaravelu vs State Represented By on 21 August, 2019
Author: M.M.Sundresh
Bench: M.M.Sundresh, M.Nirmal Kumar
Crl.A.No.500 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 08.08.2019
Pronounced on : 21.08.2019
CORAM:
THE HONOURABLE Mr.JUSTICE M.M.SUNDRESH
and
THE HONOURABLE Mr.JUSTICE M.NIRMAL KUMAR
Crl.A.No.500 of 2018
1.Singaravelu
2.Murali ... Appellant/A1 & A2
-Vs-
State represented by,
The Inspector of Police,
Tirupattur Taluk Police Station,
(Crime No.403 of 2012) ... Respondent
PRAYER : Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure, to call for the records in Sessions Case No.83 of 2014 on the file of the
III Additional District and Sessions Judge, Tirupattur, Vellore District and set aside
the conviction and sentence imposed upon them by the III Additional District and
Sessions Judge, Tirupattur, Vellore District in Sessions Case No.83 of 2014 and
allow the appeal.
For Appellants : Mr.C.R.Malarvannan for
Mr.V.Rajamohan
For Respondent : Mr.R.Prathap Kumar
Additional Public Prosecutor
******
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http://www.judis.nic.in
Crl.A.No.500 of 2018
JUDGMENT
[Judgment of the Court was made by M.NIRMAL KUMAR, J.] This appeal arises against the judgment of learned III Additional District and Sessions Judge, Tirupattur, Vellore passed in S.C.No.83 of 2014 on 06.08.2018, wherein the appellants were convicted and sentenced to undergo imprisonment for life for offence under Section 302 of IPC and to pay a fine of Rs.1,000/- in default for three years simple imprisonment and they were senteced to undergo imprisonment for two years under Section 506(i) of IPC and to pay a fine of Rs.500/- in default three months simple imprisonment. The 1 st appellant is acquitted from the charges under Sections 294(b) of IPC. The sentences have been ordered to run concurrently.
2.The case in brief:-
The case of the prosecution is that on 16.07.2012 during the funeral procession of one Silambarasan there was a wordy quarrel between the deceased and one Elango, who is the relative of the appellants and the appellants intervened in support of the said Elango. On 17.07.2012 at about 07.45 p.m, another quarrel ensued between the PW3 and the appellants over the previous incident which resulted in blood injuries to both parties and both the parties had gone to the hospital for treatment. On 18.07.2012 at about 06.00 p.m while the deceased Murugan and PW1 were having tea at Vengalapuram Kootu Road in 2/23 http://www.judis.nic.in Crl.A.No.500 of 2018 Sankar's Tea Shop, the appellants came with an intention to commit murder of the said Murugan, A1 stabbed the deceased with the chisel on the left side centre of abdomin, left side upper scapula and left elbow joint. The 2 nd appellant stabbed on the right side back of Dorso with Knife by uttering abusive and intimidating words and caused the death. Further the appellants by showing the Knife and Chisel to the persons present around in the place of occurrence and threatened them that they would stab them if they intervene and left the scene of occurrence. Thereby the appellants have committed the murder of the deceased. PW1 along with his paternal uncle Mohan/PW2 brought the deceased to Hospital. The Doctor on examination informed that the deceased was already died. Thereafter, PW1 and PW2 went to Police station, gave complaint [Ex.P1].
PW2 signed as witness, his signature is Ex.P2. On receipt of the complaint [Ex.P1], a case was registered in Crime No.403 of 2012 [Ex.P16] for the offence under Sections 302, 294(b), 323 and 506(i) of IPC. On completion of investigation and on filing of charge sheet the case was committal and the appellants were tried in S.C.No.83 of 2014 by the file of the III Additional District and Sessions Court, Tirupattur, Vellore.
3.Before the trial Court, the prosecution has examined 17 witnesses and marked 22 exhibits and 8 material objects were seized. On the side of the defense, one witness has been examined and no exhibits marked. 3/23 http://www.judis.nic.in Crl.A.No.500 of 2018 3.1.PW1-Panneerselvam deposed that on 15.07.2012 one Silambarasan met with an accident and died. When he and his Junior paternal uncles the deceased and PW3 were in the funeral procession of Silambarasan, one Elango had danced in a drunken mood. The deceased asked him to stop the dance and pulled him out. Enraged over the same, the appellants who are the maternal uncles sons of Elango came in support of said Elango and fought with them. On 17.07.2012 PW1 on the way to home saw the said Elango shouting at the deceased and PW3 picked up a quarrel which led to a fight between them. The said Elango and the appellants attacked PW3. In that, the deceased and his father Perumal and both the groups sustained injuries. They were brought to hospital. PW1 further stated that on 18.07.2012 at about 05.00 p.m when PW1 came to Alangayam Junction to Sankar's Tea Shop, the deceased and PW3 were there. When PW1 was drinking tea, both the accused came in Red Colour TVS Victor Bike [MO3] they came near the deceased, 1st appellant took Chisel [MO1] from his hip and stabbed him on left side of stomach on left side chest, the 2 nd appellant stabbed him on his back side with a knife [MO2]. PW1 along with PW2 brought the deceased to Hospital, but the Doctor on examination informed them that the deceased has already died. Hence, PW1 and PW2 went to Police station and gave a complaint [Ex.P1]. PW2 signed as witness and his signature is Ex.P2. 4/23 http://www.judis.nic.in Crl.A.No.500 of 2018 3.2.PW2 the brother of the deceased corroborated the evidence of PW1. PW2 has stated about the lodging of the complaint [Ex.P1] and signed as witness in Ex.P1 and his signature is Ex.P2.
3.3.PW3 deposed about the earlier occurrence taken place on 16.07.2012 and 17.07.2012. Further he has stated that while he was in hospital on 18.07.2012 at about 06.00 p.m PW1 and PW2 informed him that the deceased was killed by the appellants.
3.4.PW4, the Vegetable vendor present near the scene of occurrence had corroborated the evidences of PW1 and PW2. After the deceased was done to death by the appellants, she attempted to give water to the deceased. PW1 and PW2 took the deceased to the hospital. PW5 a hear-say witness.
3.5.PW6 deposed that on 19.07.2012 he came to Sankar Tea Shop to drink tea, in whose presence PW16 prepared Observation Mahazar [Ex.P3] and seized the blood stained sand [MO6] and without blood stains sand [MO7], Red Colour TVS Victor Bike [MO3] under Seizure Mahazar [Ex.P4].
3.6.PW7 the Village Administrative Officer in the witness for arrest and confession of the appellants on 18.07.2012. Pursuant to the confessions of the 5/23 http://www.judis.nic.in Crl.A.No.500 of 2018 appellants [Ex.P19 and Ex.P20], the weapons Chisel [MO1] and the Knife [MO2] were seized under Ex.P21. PW8 the Assistant of PW7 is in conformity with the evidence of PW7.
3.7.PW9 Head Constable on receipt of the requisition of PW16 produced the body of the deceased for postmortem at the Government Hospital, Thirupattur.
3.8.PW10 Head Clerk of Principal District Munsif Court, Ambur had received the material objects pertaining to the Crime No.403 of 2012 under Form 95 and assigned C.P.No.69 of 2012.
3.9.PW11 the Judicial Magistrate No.IV, Thirupathur recorded the statements of PW1, PW2, PW17 and PW4.
3.10.PW12 Scientific Officer, Forensic Department gave report by stating grouping of the blood is 'A', which is found in the material objects.
3.11.PW13 Casualty Medical Doctor before whom the deceased was brought at 06.30 p.m on 18.07.2012. PW13 noted down the injuries on the body of the deceased.
6/23 http://www.judis.nic.in Crl.A.No.500 of 2018 3.12.PW14 the Postmortem Doctor conduct Autopsy on the body of the deceased and issued postmortem certificate Ex.P15 and noted down the following injuries:-
“External Injuries:
1) 1 X 1 X 5 Cm lacerated stab injury seen over lateral aspect of left elbow joint.
2) 1 X 1 X 5 cm lacerated (Stab injury) over left side centre of abdomin.
3) 3 X 1 X 5 cm stab injury over left side upper scapula.
4) 1 X 1 X 3 cm stab injury over right side back at the level of Dorso number junction. O/D Skull-Scalf, Brain material intact on deciction O/D Hyoid bone neck intact O/D No Ribs fractures Periosteum stibbed over second Ribs.
On cut Section both lungs pale in color. Heart Pale in color. O/C obdomine black color semi solid food particuls seen around 200 ml smal intestine empty around 200 ml blood seen inside the abdominal cavity. Liver spleen both kidneys on cut section pale in color urinary blodder empty PM concluded at 11.30 a.m cause of death due to Hypovolumic Shock 12-16.00 hrs from P.M.time” 3.13.PW15 Sub Inspector of Police received the complaint [Ex.P1] registered a case in Crime No.403 of 2012 [Ex.P16] for the offence under Sections 302, 294(b), 323 and 506(i) of IPC.
7/23 http://www.judis.nic.in Crl.A.No.500 of 2018 3.14.PW16 Investigating Officer on receipt of case in Crime No.403 of 2012 visited the scene of crime, prepared mahazars, conducted inquest in presence of witnesses, forwarded the body of the deceased for postmortem, seized the material objects, examined the witnesses, arrested the accused, recorded the confession of the accused, forwarding accused to judicial custody, obtained various reports, forwarded the material objects to Court under Form 95 and on completion of investigation, filed the charge sheet.
4.The appellants were charged for offences under sections 302, 506(ii) and 294(b) of IPC. On questioning under Section 313 Cr.P.C appellants denied the charges. On appreciation of evidence, oral and documentary, the trial Court under Judgment dated 06.08.2018, convicted the appellants. Hence, the present appeal.
5.The learned counsel for the appellants would submit that the deceased, PW2 and PW3 are the brothers. When PW1, PW2 and the deceased were attending the funeral procession of Silambarasan on 16.07.2012, one Elangovan danced in a drunken mood, dashed PW3. PW3 questioned the same. There was a quarrel between them, PW3 pulled him down. Enraged over the same, the appellants came in support of the said Elangovan and fought with him. Thereafter, the villagers intervened and pacified them. On the next day ie., on 8/23 http://www.judis.nic.in Crl.A.No.500 of 2018 17.07.2012 fight continued and at that time PW3, deceased and the appellants had exchanged blows, both the groups got injured. PW3 was taken to the hospital where he took treatment as in-patient. He further contended that the exchange of blow and injuries sustained by PW3 on 17.07.2012 is a got-up story. The said Elango has not been examined as witness, who is the reason for the fight between the two groups. Further, there is no material to show that PW3 took treatment as in-patient.
6.It is admitted by PW1 to PW3 that they made no complaint to the police about the incident occurred on 17.07.2012. On 18.07.2012 at about 05.00 p.m, when PW2 and the deceased were having tea in Sankar [PW17] Tea Shop, the appellants came by two wheeler TVS Victor [MO3], the 1st appellant stabbed the deceased by using chisel [MO1] on the left side stomach, left side chest and left hand, the 2nd appellant stabbed on the back with Knife [MO2] by uttering with abusive words and threatening and caused the death of the deceased. Thereafter the appellants ran away leaving the vehicle [MO3]. The deceased was given water by PW4, but there was no mention about PW4 in the complaint [Ex.P1].
7.PW3 is the witness for the occurrence on 17.07.2012 and the presence of PW3 on 17.07.2012 is doubtful. It is further submitted that PW1 and PW2 were 9/23 http://www.judis.nic.in Crl.A.No.500 of 2018 not present in the scene of occurrence. Since they are close relatives to the deceased, they have approached the police as though they are the eye witness to the occurrence. PW1 stated that he took the deceased for treatment to the hospital and went to the police for lodging a complaint. No blood stained clothes of the deceased were seized. PW17, the owner of the Sankar Tea Shop in whose front of the shop the occurrence is said to have been taken place, has not supported the case of the prosecution.
8.PW1 admits that the complaint [Ex.P1] was written by one of his relatives, who came along with him to the police station and he affixed his signature, but nothing is found in the complaint. Further PW15 has stated that a written complaint [Ex.P1] was given by PW1 and there is no mention about the above fact. Further, there is considerable delay in lodging the complaint [Ex.P1]. PW2 is a motivated witness who is none other than the brother of the deceased. PW6 is the relative of the deceased in whose presence the Observation Mahazar [Ex.P3], the blood stained earth [MO6] and without blood stained earth [MO7] were seized, Red Colour TVS Victor Bike [MO3] were seized under Seizure Mahazar [Ex.P4]. Despite the fact that the occurrence has taken place in the public, the prosecution did not examine any independent witness and only the relatives of the deceased were examined. PW17, the only independent witness has not supported the case of the prosecution.
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9.PW16 the investigating Officer came to know about the registration of the case, visited the scene of occurrence only on 19.07.2012 at about 06.00 a.m for the reason that at 09.00 p.m on 18.07.2012 there was no one in the scene of occurrence and the shops have been closed and hence he could not conduct the investigation, which is highly artificial and the delay of time is to foist a false case against the appellants.
10.PW7 and PW8 are VAO and Assistant, who are the witnesses for the arrest of the accused and recovery of the material objects. They stated that the appellants were arrested on 19.07.2012 at about 04.15 p.m. Based on their confessions [Ex.P19 and Ex.P20], the Chisel [MO1] and Knife [MO2] recovered on 19.07.2012. PW7 and PW8 had seen the appellants in the custody of the police on 18.07.2012, which has not been clarified by the prosecution. Hence, the arrest and recovery becomes highly doubtful.
11.PW10 the Head Clerk of Judicial Magistrate Court No.II, Thirupathur assigned the Case Property in C.P.No.69 of 2012 for material objects. PW11 the Judicial Magistrate No.IV, Thirupathur on receipt of the proceedings from learned Chief Judicial Magistrate, Vellore [Ex.P5] recorded the 164 Cr.P.C., statements of PW1, PW2, PW4 and PW17 and the same were marked as Ex.P6 to Ex.P9 respectively. These statements were not confronted with the respective 11/23 http://www.judis.nic.in Crl.A.No.500 of 2018 witnesses. Hence, Ex.P6 to Ex.P9 are of no significance. PW12 the Scientific Officer, Forensic Department through whom Ex.P10 to Ex.P13 have been marked.
12.PW13 the Casualty Medical Doctor before whom on 18.07.2012 at about 06.30 p.m the deceased was brought. He examined the body of the deceased and issued Wound Certificate [Ex.P14]. From Ex.P14 it is seen that PW13 stated only with regard to the injuries with knife [MO2] and there is no mention as regards to the injuries with Chisel [MO1]. Therefore, the Chisel [MO1] used for stabbing the deceased is a got-up story of the prosecution. The injures found on the body of the deceased are lacerated/stab injuries on the left elbow point, lacerated/stab injuries over left side centre of abdomen, stab on the forearm and stab on the right side back at the level of dorso number junction. There is no mention about the injuries with Chisel [MO1]. On physical examination of the deceased PW13 stated that the deceased sustained only simple injuries.
13.PW14 the Postmortem Doctor conducted Autopsy on the body of the deceased and issued Ex.P15, in which it is seen that there are four injuries and he gave an opinion that due to Hypovolumic Shock the death would have occurred. PW14 further stated that there would be difference in the nature of injuries with MO1 and MO2 and the injuries observed by him are by Knife [MO2] and he stated that with MO1, injuries could not have inflicted. 12/23 http://www.judis.nic.in Crl.A.No.500 of 2018
14.PW15 the Sub Inspector of Police stated about lodging the complaint [Ex.P1]. In view of contradictory evidence of PW1 the manner in which the complaint came into the existence is highly doubtful. PW16, the Investigating Officer visited the scene of occurrence at about 09.00 p.m on 18.07.2012. Since it was pitch dark and the shops were closed, he was unable to collect the vital materials in the scene of occurrence. The evidences of PW1 and PW2 are contrary to each other and also contrary to the evidences of PW13 and PW14. On going through the evidence of PW7 and PW8, the recoveries are highly doubtful. Further DW1 the co-worker with the appellants has stated that the appellants were working along with him during the relevant period in Bangalore from the 2009.
15.In view of the above and on the medical evidence the learned counsel for the appellants submitted that the prosecution has not proved the case beyond reasonable doubt and the appellants are entitled for acquittal by granting them benefit of doubt. In alternative he further contented that in any case the single injury attributed to 2nd appellant is on a non vital part and in all probability would not amount to murder.
16.The learned Additional Public Prosecutor appearing on behalf of the respondent police would submit that PW1, PW2 and PW4 are the eye witnesses to 13/23 http://www.judis.nic.in Crl.A.No.500 of 2018 the occurrence. PW3 is the injured witness to earlier day occurrence on 17.07.2012, who was admitted in the hospital and was threatened in the hospital by the appellants. PW6 the local villager attested the Observation Mahazar [Ex.P3] and Seizure Mahazar [Ex.P4]. PW15 the Sub Inspector of Police received the complaint Ex.P1. On receipt of the same immediately registered an F.I.R in Crime No.403 of 2012 [Ex.P16] and thereafter informed about the occurrence to the higher officials and to the concerned Jurisdictional Court. After receiving Ex.P16, PW16 visited the scene of occurrence, since it was dark no one available and all the shops are closed with shutters and tension was prevailing. On the next day ie., on 19.07.2012 he again visited the scene at about 09.00 a.m, enquired and examined the witnesses. In presence of PW7 and PW8 arrested the appellants. Pursuant to the confessions of the appellants [Ex.P19 and Ex.P20] seized the weapons Chisel [MO1] and Knife [MO2] under Ex.P21. The seized material objects were sent to the Judicial Magistrate Court No.II, Thirupathur immediately then and there as could be seen from the evidence of PW10. PW12 the Scientific Officer received the articles and gave his opinion under Ex.P11. PW11 the Judicial Magistrate No.IV, Thirupathur has recorded the statements of PW1, PW2, PW4 and PW17, which were marked as Ex.P6 to Ex.P9 respectively.
17.PW17 resiled from his earlier statement. It will not affect the case of the prosecution. PW1, PW2 and PW4 have given categorical evidence about the 14/23 http://www.judis.nic.in Crl.A.No.500 of 2018 involvement of the appellants and their overtact. PW13 the Casualty Doctor examined the deceased and gave Wound Certificate [Ex.P14]. PW14 the Postmortem Doctor conducted Autopsy on the body of the deceased and issued Ex.P15, in which he has categorically stated that the deceased died due to the injuries sustained by him and due to Hypovolumic Shock.
18.Thus on completion of investigation and collection of materials, the prosecution witnesses have clearly deposed against the appellants. On perusal of the same, the trial Court had rightly convicted the appellants, who committed the murder in a public place with motive and intention.
19.This Court considered the rival submissions made by the learned Counsel on either side and perused the materials on record.
20.PW1, PW2 and PW4 are the witnesses to the occurrence. PW1 and PW2 had categorically stated about the motive and the injuries sustained by PW3 on the earlier attack. Since, the witnesses and the appellants hail from the same place, there is no dispute with regard to identity. Further these witnesses stated about the injuries inflicted by the appellants on the deceased, in which three injuries were caused by the 1st appellant and one injury by the 2nd appellant. 15/23 http://www.judis.nic.in Crl.A.No.500 of 2018
21.The Non-mentioning of MO1-Chisel in Ex.P14 would not be of much consequence. It is the certain version of the eye witnesses that both the appellants were present with MO1 and MO2. The injuries Nos.1 to 3 found in Ex.P14 and Ex.P15 have been inflicted by the 1st appellant with MO1 and injury No.4 was inflicted by the 2nd appellant with MO2. Now on perusal of Ex.P21 the Seizure Mahazar and Ex.P22 form 95 for MO1 and MO2, it is seen that MO1 is the chisel which is 3cm at the base, 14.5 cm length with a sharp pointer and MO2 is the Knife which is 2cm at the base, 11cm length with the sharp pointer and all the injuries are stab injuries. It is a known fact that the stab injuries after sometime retrieves/shrink due to elasticity nature of the skin and tissues. Hence, there may not be accurate measurement of injuries except when the injuries are cut and open. In this case all the injuries are stab injuries, though MO1 is the chisel and MO2 is the Knife, the base, width, length and sharp pointer are similar. Hence the opinion of PW13 and PW14 would not affect the case in any manner.
22.In any case their evidences are only opinionated not persuasive. It is the occular evidence which prevails over the medical evidence. In this case PW1, PW2 and PW4 are witnesses to the occurrence, who have clearly stated about the presence of both the appellants armed with MO1 and MO2 inflicting stab injuries.
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23.From the evidence of PW1 it is seen as regards A1 "1tJ vjphp rp';fhuntY fpl;nl te;jt[ld; ,Lg;gpy; itj;jpUe;j cspia vLj;J KUfd; rpj;jg;gh gPr;rf;if tapw;Wd; gf;fk; Fj;jpdhd;/ kPz;Lk; me;j cspia vLj;J gPr;rf;if gf;fk; be";rpy; Fj;jpdhd;/" As regards A2 is that "2tJ vjphp Kusp ifapy; xU fj;jpia itj;J fPnH Fdpe;j vd; rpj;jg;ghtpd; KJfpy; ,j;njhL xHpe;Jnghlh njtoah igah vd;W brhy;yp Fj;jptpl;lhd;/"
24.From the evidence of PW2 it is seen as regards A1 "1tJ vjphp rp';fhutntY ifapy; itj;jpUe;j cspahy; tapw;wpy; Fj;jpdhd;/ gpd;dh; mnj cspia cUtp ,lJ gf;f be";rpy; Fj;jptpl;lhd;/ As regards A2 "2tJ vjphp KUfid fj;jpahy; KJfpd;kPJ Fj;jpdhd;/
25.From the evidence of PW4 it is seen as regards A1 "1tJ vjphp cspia vLj;J ,lJ gf;f khh;gpd; kPJ Fj;jptpl;lhh;/ As regards A2 "2tJ vjphp fj;jpahy; KJfpy; Fj;jptpl;lhh;/
26.The corresponding injuries inflicted by A1 found in Postmorterm Certificate [Ex.P15] are "i) 5X3X1 cm lacerated stab injury seen over lateral aspect of left elbow joint, ii) 1X1X5 cm lacerated (Stab injury) over lect side centre of abdomin and iii)3X1X5 cm stab injury over left side upper scapula". The injuries inflicted by A2 is that "iv) 1X1X3 cm stab injury over right side back 17/23 http://www.judis.nic.in Crl.A.No.500 of 2018 at the level of Dorso number junction."
27.From the above it is proved that the appellants had attacked the deceased with MO1 and MO2. The corresponding injuries and the medical evidence are in conformity. Hence this Court finds that the deceased was murdered by the appellants and the fatal stab injuries have been inflicted by the 1st appellant. Therefore, the finding and sentence of the trial Court is confirmed as regards the 1st appellant/A1.
28.As regards A2 it is seen that the charge against the 2nd appellant is 302 of IPC SIMPLICITER. The injury No.4 attributed to the 2nd appellant is sufficient in ordinary occurrence of nature to cause death, but is of lower of likelihood, which is generally spoken of an injury “likely to cause death” and the case does not fall under clause (3) of Section 300 of IPC. The evidence of PW1, PW2 and PW4 is that the 2nd appellant had stabbed the deceased on the back and the corresponding injury No.4 is only 1X1X3 cm stab injury and this injury on dissection found not gravated. Further as could be seen from the dissection, this injury is not a fatal one.
29.The 2nd appellant is charged under Section 302 of IPC SIMPLICITER. In view of the same the injury No.4 attributed by the 2nd appellant may not be the 18/23 http://www.judis.nic.in Crl.A.No.500 of 2018 reason for cause of death. The Hon'ble Apex Court and this Court in various Judgments have laid down guideline principles that there must be intention to inflict injury, i.e., the person and the said injury is sufficient to cause death in the ordinary occurrence of nature. The "Intention" and "Knowledge" are subjective and improbable status of mind and there existance has to be covered from the circumstances such as weapon used, the furiacity of attack, multiplicity of injuries and other certain circumstances. The case of "Virsa Singh" which is relied upon in various decisions has given the guidelines and laid down the principle of culpable homicide not amounting to murder. In the said case one of the points for consideration and factus for consideration is that "Number of injuries inflicted" and "where the injuries were inflicted".
30.This Court has to decide whether the 2nd appellant is entitled to benefit of exception in this case, though the prosecution has established the case against the 2nd appellant. In view of the above factual matrix it is to be seen whether the act of the 2nd appellant would come under any of the exceptions. The leading case in this regard in "State of Andhra Pradesh Versus Rayavarapu Punnayya" wherein it has been held that:-
"12. In the scheme of the Penal Code, culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice- versa. Speaking generally, culpable homicide sans special characteristics of murder, is 19/23 http://www.judis.nic.in Crl.A.No.500 of 2018 culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the greatest form of culpable homicide, which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. This is punishable under the first part of Section 304. Then, there is culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of 20/23 http://www.judis.nic.in Crl.A.No.500 of 2018 Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of murder contained in Section 300. If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304, of the Penal Code. "
31.In the instant case, the act of the 2nd appellant falls within the Second clause of Section 299 which comes within exceptions enumerated in Section 300. Hence the act of the 2nd appellant would be “Culpable homicide not amounting to murder”, punishable under the first part of Section 304 of IPC. The injury caused by the 2nd appellant is not of higher degree of likelihood which is covered by the expression “Sufficient in the ordinary course of nature to cause death” but is of lower degree of likelihood which is generally spoken of as an injury “likely to cause death” and the case does not fall under clause (3) of Section 300 of IPC.
32.The substratum of the evidence of the prosecution witness on scrutiny 21/23 http://www.judis.nic.in Crl.A.No.500 of 2018 shows that the evidence on the part of the 2nd appellant was to inflict stab injury on the back which is non vital part, would attract the second clause of Section 299 of IPC punishable under Section 304(i) of IPC.
33.In the result we set-aside the Conviction and Sentence imposed on the 2nd appellant under Section 302 of IPC for life imprisonment and instead convict him under Section 304(i) and sentence him to undergo 7 years R.I. Subject to the above modification, this Criminal Appeal is Partly-Allowed. As concluded earlier, the appeal against the 1st appellant stands dismissed by confirming the conviction and sentence of the trial Court.
[M.M.S., J] [M.N.K., J]
21.08.2019
Speaking Order/Non-Speaking Order
Internet : Yes/No
Index : Yes/No
vv2
To
1.The III Additional District and Sessions Judge, Tirupattur, Vellore District.
2.The Inspector of Police, Tirupattur Taluk Police Station, Thirupattur.
M.M.SUNDRESH, J.
and 22/23 http://www.judis.nic.in Crl.A.No.500 of 2018 M.NIRMAL KUMAR, J.
vv2
3.The Public Prosecutor, High Court, Madras.
Pre-Delivery Judgment in Crl.A.No.500 of 2018 21.08.2019 23/23 http://www.judis.nic.in