Madras High Court
P.Jayaaj vs State on 6 December, 2012
Author: M.Jaichandren
Bench: M.Jaichandren
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/12/2012 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU CRIMINAL APPEAL (MD).No.367 of 2011 and M.P.No.2 of 2011 P.Jayaaj ... Appellant Vs. State, rep by the Inspector of Police, Kumbakonam West (L&O), Police Station, Kumbakonam, Crime No.307 of 2001, Thanjavur District. ... Respondent PRAYER Appeal is filed under Section 374(2) of the Code of Criminal Procedure to call for the records in S.C.No.92 of 2003, on the file of the learned Sessions Judge, Thanjavur, dated 19.11.2003. !For Appellant ... Mr.S.Mohandoss ^For Respondent ... Mr.C.Ramesh Additional Public Prosecutor :JUDGMENT
************* [Judgment of the Court was delivered by S.NAGAMUTHU, J.].
The appellant is the sole accused in S.C.No.92 of 2003, on the file of the learned Sessions Judge, Thanjavur. He stood charged for offences under Sections 302 (two counts) and 506(ii) [two counts] of the Indian Penal Code. The Trial Court, by Judgment dated 19.11.2003, convicted the appellant under all the charges. The Trial Court sentenced him to undergo rigorous imprisonment for seven years for each count for the offence under Section 506(ii) of the Indian Penal Code and for the offence under Section 302 of the Indian Penal Code, the Trial Court has sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for four years for each count. The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant is now before this Court with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:-
The accused and the deceased - T.Muthusamy [hereinafter referred to as "D- 1"] and S.Gnanam @ Thirugnanam [hereinafter referred to as "D-2"] were friends. Subsequently, there arose misunderstanding between them. Thereafter, on 19.05.2001, at about 04.00 PM, D-1 and D-2 were standing near one Arul Selvaraj Cycle Company, situated at Old Palace Street, at Kumbakonam. At that time, the accused came there. There were exchange of words between the accused, D-1 and D-
2, in which, D-1 told the accused that he could spare his wife as concubine to him. These words uttered by D-1 provoked and the wordy quarrel became intensified. PW-1, PW-2 and PW-4 were in the Lorry Booking Office of PW-1. The said Lorry Booking Office is situated very nearer to the said Arul Selvaraj Cycle Company.
2.1. On hearing the above quarrel between the deceased on one side and the accused on the other side, PW-1, PW-2 and PW-4 rushed to the spot. They separated the accused and persuaded both the accused and the deceased not to quarrel. D-1 and D-2 continued to stand near the said Arul Selvaraj Cycle Company, whereas, the accused returned to his house. Within a short span of time, the accused returned to the said place with a knife. When he was rushing towards D-1, PW-1, PW-2 and PW-4 warned him not to cause any harm to D-1. But, without heeding to the words of PW-1, PW-2 and PW-4, the accused stabbed D-1 indiscriminately causing as many as eight injuries. D-1 fell down in a pool of blood. On seeing the attack made on D-1, D-2 fled away from the scene of occurrence. But, the accused did not stop. He chased D-2 and caught him hold on the western end of the street in front of the shop of PW-3, viz., Durga Auto Works. He stabbed D-2 indiscriminately with the very same knife. The intestine of D-2 protruded out. PW-3 tried to catch him hold. In the meanwhile, PW-1, PW-2 and PW-4 also rushed following the accused and they also witnessed the entire occurrence, in which D-2 was stabbed by the accused. The accused, thereafter, fled away from the scene of occurrence.
2.2. D-1 as well as D-2 were in a very critical condition. PW-1 passed on information to the family members of D-1 and D-2. PW-8, the wife of D-1 and the others rushed to the spot. All of them took D-1 and D-2 in an auto and rushed them to the Government Hospital, Kumbakonam. After the first aid treatment, the doctor advised them to be taken to the Thanjavur Medical College Hospital. So, D-1 and D-2 were immediately taken to the Thanjavur Medical College Hospital. At about 07.30 PM, on 19.05.2001, PW-19, Dr.R.Murugesan, examined D-2 and admitted him as an inpatient. D-2 told the doctor that he was stabbed by a known person with knife at 04.00 PM. D-2 was conscious. But, his pulse was very weak. PW-19 entered the injuries in the Accident Register [EX-P16]. The followings are the injuries noted by him:-
"1. stab injury abdomen exposing intestines protruding out in the unblicus.
2. stab injury chest left side 5 X 2 X 2 CM.
3. stab injury chest left side 2 X 2 X 1 cm."
Despite treatment given, D-2 succumbed to the injuries on 20.05.2001, at 02.10 PM.
2.3. At 09.00 PM, on 20.05.2001, D-1 was taken to a Private Hospital, known as "Vinodhagan Memorial Hospital" at Thanjavur. PW-16, Doctor D.Jayaprakash, examined him and noticed the following injuries:-
"1. stab injury left side abdomen with protruding omentum.
2. stab injury abdomen right side lower part of chest.
3. stab injury right side chest."
He admitted him as an inpatient. EX-P11 is the treatment records. EX-P12 is the Medico Legal Certificate issued by PW-16. He sent EX-P1- intimation to the police. Despite treatment given, D-1 died in the hospital, on 21.05.2001 at 09.40 PM.
2.4. On receiving intimation from the hospital, on 19.05.2001, at 09.00 PM, PW-20, the Head Constable, attached to the Kumbakonam West Police Station, proceeded to the Thanjavur Medical College Hospital. Since at that time, D-1 and D-2 were unconscious, he obtained complaint from PW-1 at the hospital. The oral complaint given by PW-1 was reduced into writing by PW-20. EX-P1 is the complaint. On returning to the Police Station, at 11.45 PM, on 19.05.2001, he registered a case in Crime No.307 of 2001 for offences under Sections 324 and 307 of the Indian Penal Code. Then, he forwarded the First Information Report and the complaint to the Court and handed over the case diary to the Inspector of Police PW-22, for investigation.
2.5. Taking up the case for investigation, PW-22, the then Inspector of Police, attached to the Kumbakonam West Police Station, proceeded to the place of occurrence at 06.00 AM and prepared an Observation Mahazer [EX-P4] in the presence of the witnesses. He prepared Rough Sketch showing the place of occurrence. Then, he recovered the bloodstained earth and sample earth under EX- P5 from the place, where D-1 was stabbed by the accused. Then, he proceeded to the place, where D-2 was stabbed. Since the said place had already been washed by PW-3, R.Jayasankar, no bloodstain was found, and so, no recovery was made. At 10.00 AM, on the same day, he proceeded to the Thanjavur Medical College Hospital to examine D-1 and D-2. Since both the deceased were unconscious, he could not record any statement from them. He recorded the statements of PW-1 to PW-4.
2.6. On 20.05.2001, at 02.10 PM, D-2 died in Thanjavur Medical College Hospital. On receiving the death intimation, EX-P2, PW-22 altered the case into one under Section 302 of the Indian Penal Code. EX-P22 is the Alteration Report. On 21.05.2001, he conducted inquest on the body of D-2 and prepared EX-P23, Inquest Report. Then, he forwarded the body of D-2 for postmortem.
2.7. PW-17, Doctor, S.Vijayalakshmi, who was the then Professor and Head of the Department of Forensic Medicine, Thanjavur Medical College Hospital, conducted autopsy on the body of D-2 at 02.00 PM, on 21.05.2001. She found the following injuries:-
"1. A surgically sutured midline wound with intact silk sutures noted over the front of abdomen extending from the xiphisternum totally measuring 25 cms in length (18 cms above umbilicus and 7 cms below the umbilicus).
ii). A surgically sutured stab wound with intact silk sutures noted over the left side lateral chest wall over the 6th intercostal space on the anterior axillary line, and 15 cm below the arm pit measuring 4 CM X 1 CM X thoracic cavity deep.
iii). An incised wound measuring 1 CM X , CM X , cm noted over the left side front of chest found situated 6 cm lateral and below the left nipple over the 4th intercostal space.
iv). A surgically sutured transversely placed stab wound noted over the left side lower part of lateral chest wall in the mid axillary line 23 cm below the arm pit over the 9th intercostal space and with intact silk sutures measuring 1.5 cms X + cms X thoracic abdominal cavity deep.
v). An eliptical surgically sutured stab wound with intact silk sutures noted over the front of upper half of right side abdomen over the epigastric region situated 6 cm lateral to the midline and 4 cms below the costal margin measuring 3 cms X 0.5 cms X abdominal cavity deep.
vi). A surgically made drainage wound with intact rubber drainage tube in situ noted over the right side flank of abdomen.
Vii). Absrasions noted over;
1. Top of right shoulder 2 X 2 cms.
2. Back of right elbow - 2 nos each measuring 1 X 1 cms
3. below the right elbow 2 X 1 cms
4. back of right shoulder 4 X 1 cms
5. back of left shoulder 2 X 2 cms
6. Top of left shounder 4 X 1 cms
7. Scratch abrasion over the front of lowr 1/3rd of left leg 7 X 0.25 cms.
8. back upper 1/3rd of left forearm 2 X 2 cms
9. back of left wrist 2X1 cms
10.back of left elbow 2 X 2 cms
11. left scapular area 15 X 5 cms."
EX-P14 is the Postmortem Certificate. She opined that the deceased would appear to have died due to effects and complications of multiple stab injuries involving the chest and abdomen [left lung, stomach and small intestine].
2.8. Continuing the investigation, PW-22 recovered dress materials found on the body of D-2, under a Mahazer. On 21.05.2001, at 09.45 PM, D-1, who had earlier been shifted to Vinodhagan Memorial Hospital at Thanjavur, died. On 22.05.2001, between 06.00 AM and 10.00 AM, PW-22 conducted inquest on the body of D-1 at the mortuary of the Vinodhagan Memorial Hospital at Thanjavur. He examined PW-16 in respect of the treatment given to D-1 and recorded his statement. Then, he forwarded the dead body of D-1 for postmortem. On 22.05.2001, at 11.30 AM, PW-17, Doctor, S.Vijayalakshmi, conducted autopsy on the body of D-1. She found the following injuries:-
"A midline surgical sutured wound 22 cm in length with intact sutures seen over the front of upper part of abdomen. The lower end is situated just above the umbilicus.
A vertically oblique sutured stab wound 5 cms in length with intact sutures seen over the front of upper half of left side of abdomen situated in the epigastric region and 4 cm to the left of midline. On dissection the wound is spindle shaped, 2 cm wide and found to have entered into the left side of the abdominal cavity. Further examination showed three tears in the jejunum. One tear in the root of mesentery and a tear in the body of stomach in the anterior wall near the greater curvature. All of them were found surgically sutured with surgical reparative sutures in the greater omentum.
3. A horizontal sutured stab wound 2.5 cm in length with intact sutures seen over the upper part of right side of abdomen in the anterior axillary line situated just below the costal margin and 16 cms to the right of midline. On dissection the wound is spindle and 1 + cms wide and entered into the right side of abdominal cavity. Further examination showed a tear in the anterior wall of first part of duodenum which was found sutured.
4. A surgical drainage stab wound seen over the left side flank of abdomen.
5. A horizontally oblique spindle shaped stab wound 2 X 1 cms seen over the back of right side of abdomen at the posterior axillary line, situated 26 cms below the level of right arm pit. On dissection the wound is found to communicate with the abdominal cavity. Further examination showed a cut in the posterior aspect of right lobe of liver close to the gall bladder. Abdominal cavity contained 400 ml of yellowish brown colored fowl smelling turbid fluid. All the visceral organs were pale and adherent to each other. Thin flakes of yellowish green pus found sticking onto the abdominal visceral organ.
6. A horizontally oblique sutured stab wound 3+ cms in length with intact sutures seen over the flank of right side of chest in the midaxillary line, situated 3 cms above the costal margin and 24 cms below the right arm pit. On dissection the wound is spindle shaped 1+ cms wide and fund to have entered into the right side thoracic cavity through the eighth intercostal space; Further examination showed a tear 1+ cms X 1 cm X 1+ cms in size seen in the diaphragmatic surface of lowerlobe of right lung. Right side thoracic cavity contained 800 ml of blood stained fluid.
7. A horizontally oblique sutured stab wound 3+ cms in length with intact sutures seen over the antero lateral aspect of upper third of right thigh. On dissection the wound is spindle shaped 1+ cm wide and 7 cms in depth. On examination the wound is directed upwards and medially involving the muscles.
8. Abrasion 2 X 1 cms just above the outer aspect of left ankle.
9. Two incised wounds 1 cm X , cms X , cms and + cms X , cms X , cms over the back of proximal phllanx of left thumb.
10. Incised wound 1 X , cms X , cms over the lateral aspect f middle phalanx of left ring finter.
11. Multiple small abrasions sizes ranging from 1 X + cms to , cms X , cms seen over the back of left elbow over an area of 5 X 4 cms."
EX-P15 is the Postmortem Certificate. She opined that the deceased would appear to have died of complications due to stab injuries to chest and abdomen involving the vital organs.
2.9. Continuing the investigation, PW-22 recovered the dress materials found on the body of D-1, under a Mahazer. On 23.05.2001, at 06.00 AM, at Kumbakonam New Bus Stand, PW-22 arrested the accused in the presence of PW-7 and another witness. On such arrest, he gave a voluntary confession and the same was reduced into writing by PW-22. In the said statement, he had disclosed the place, where he had hidden MO-1, knife. In pursuance of the same, he took PW-22 and the other witnesses to the hide out and produced MO-1. PW-22 recovered the same under a Mahazer in the presence of the witnesses. On completing the investigation, he laid charge sheet against the accused.
3. Based on the above materials, the Trial Court framed charges under Sections 302 (two counts) and 506(ii) [two counts] of the Indian Penal Code. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of incriminating evidences available against the accused, he denied the same as false. However, he did not choose to examine any witness on his side nor to exhibit any document in his defence.
4. As we have already pointed out, PW-1, PW-2 and PW-4 have spoken to about the attack made on both the deceased by the accused. PW-3 has spoken to about the attack made on D-2 by the accused. PW-7 and PW-22 have spoken to about the arrest of the accused and the consequential recovery of MO-1. The others are the official witnesses. Having considered all the above materials, the Trial Court found him guilty under all the charges, and accordingly, punished him. That is how, the appellant is now before this Court with this Criminal Appeal.
5. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor and also perused the records carefully.
6. As we have already pointed out, PW-1, PW-2 and PW-4 have spoken to about the attack made by the accused on both the deceased. According to them, immediately after the occurrence, they informed about the occurrence to the family members of the deceased. PW-8 and the other family members took D-1 and D-2 in an auto and rushed them to the Government Hospital, Kumbakonam, from where, they were taken to the Thanjavur Medical College Hospital. Though PW-1, PW-2 and PW-4 have been subjected to cross-examination at length, nothing could be elicited so as to discredit either their presence in the place of occurrence or their veracity. D-1 was attacked just in front of the said Arul Selvaraj Cycle Company, which is situated very nearer to the said Lorry Booking Office of PW-1 and D-2 was attacked just in front of the shop of PW-3. Thus, their presence in the place of occurrence is quite natural. PW-1 has further stated that PW-2 and PW-4 were with him talking about some general matters at the time of occurrence. They have further stated that they only persuaded both the accused and the deceased. The accused went away to his house and after a considerable time, when he returned to the place of occurrence, armed with a knife and stabbed D-1. It is the evidence of PW-3 that on seeing the attack made on D-1, D-2 tried to escape. When D-2 was running towards west, the accused chased him, reached him near the shop of PW-3 and stabbed him. This has been spoken to by PW-3 also. Thus, from the evidence of PW-3 also, the prosecution has clearly established that it was this accused, who alone caused the death of both the deceased, in which there can be no dispute at all.
7. PW-18, Doctor, S.Paramsivam, was the one, who examined D-1 and D-2, at 05.00 PM, on 19.05.2001 and at that time, he was told by both the deceased that they were attacked by a single known male person. Thereafter only, the deceased were taken to the Thanjvur Medical College Hospital. PW-19, Dr.R.Murugesan, has spoken to about the treatment given to both the deceased and the death of D-2 in Thanjavur Medical College Hospital. PW-16 has spoken to about the treatment given to D-1 at Vinodhagan Memorial Hospital at Thanjavur. He has also spoken to about the death of D-1. PW-17, who conducted autopsy on the body of the deceased, has spoken to about the injuries and the cause of death.
8. From the above medical evidences, it has been clearly established that the death of the deceased was due to the injuries caused on them respectively. The medical evidences duly corroborate the eye - witnesses account.
9. The learned counsel for the appellant would contend that the appellant would have acted out of sustained provocation, and therefore, the offence said to have been committed by the appellant would fall under exception I to Section 300 of the Indian Penal Code.
10. In our considered opinion, the act of the appellant would squarely fall within ambit of first limb of Section 300 of the Indian Penal Code in respect of the death of both the deceased. The act of the accused in carrying away the weapon from his house, stabbing D-1, chasing D-2 to a considerable distance, and then, stabbing him would all go to show that there was clear intention to do away with the deceased, and therefore, the argument of the learned counsel that the appellant acted out of sustained provocation is only to be rejected. We hold that the act of the accused clearly falls within the ambit of first limb of Section 300 of the Indian Penal Code, and therefore, he is liable to be punished under Section 302 of the Indian Penal Code.
11. Though it is contended by the learned counsel for the appellant that the act of the accused would fall only under exception I to Section 300 of the Indian Penal Code, we do not find any substance in the said argument. As has been spoken to by PW-1 to PW-4, one of the deceased shouted at the accused and told him to send his wife as his concubine and these utterances would have certainly provoked the accused. But, after the provocation, the accused had gone to his house. From the house, when he returned to the place of occurrence, he was armed with the knife with a determination to do away with the deceased. The weapon is a formidable one. He has caused a number of injuries on both the deceased. The most of the injuries are on the vital parts of the deceased. Thus, in our considered opinion, the act of the accused does not fall within the ambit of first exception to Section 300 of the Indian Penal Code.
12. The learned counsel for the appellant would rely on the Judgment of the Hon'ble Supreme Court in Amrithalinga Vs. State of Tamil Nadu reported in AIR 1976 SC 1133. That was a case, where, on facts, the Hon'ble Supreme Court held that the act of the accused therein would fall under exception 4 to Section 300 of the Indian Penal Code. But, in the case on hand, the fight between the accused and the deceased was not instantaneous and sudden. After the initial fight, as we have already pointed out, the accused went to his house, returned after some time, armed with the knife, stabbed D-1, chased D-2 and also stabbed D-2. Thus, the act of the accused would not fall within the ambit of Exception 4 to Section 300 of the Indian Penal Code also.
13. The learned counsel, nextly, relied on the Judgment of the Hon'ble Supreme Court in V.Sreedharan Vs. State of Kerala reported in AIR 1992 SC 754. That was a case, where also, on facts, the Hon'ble Supreme Court held that the offence said to have been committed by the accused therein would fall within the ambit of Exception 4 to Section 300 of the Indian Penal Code. But, in our case, there is a time gap between the first occurrence and the second occurrence. In the first occurrence, there was a quarrel between the accused and the deceased. PW-1, PW-2 and PW-4 intervened and persuaded them. Thereafter, the accused went away from the place of occurrence. After a considerable time, he returned with knife and stabbed D-1 and D-2. This would go to show that both the occurrences cannot be construed as one and the same occurrence. Thus, the act of the accused would not fall within the ambit of Exception 4 to Section 300 of the Indian Penal Code.
14. From the foregoing discussions, we hold that the accused has committed murder of D-1 and D-2, and therefore, he is liable to be punished for the offence under Section 302 of the Indian Penal Code [two counts]. So far as the conviction under Section 506(ii) of the Indian Penal Code is concerned, from the evidences of PW-1, PW-2 and PW-4, it could be seen that the accused criminally intimidated them. Thus, he is liable to be punished for offence under Section 506(ii) of the Indian Penal Code [two counts].
15. Now, turning to the quantum of punishment, we do not find any infirmity so as to interfere with the same. In our considered opinion, the quantum of punishment imposed on the appellant by the Trial Court is just and fair.
16. In the result, the Criminal Appeal fails and the same is dismissed. The conviction and sentence imposed on the appellant is hereby confirmed. Consequently, connected Miscellaneous Petition is closed.
NB To
1.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
2.The Inspector of Police, Kumbakonam West (L&O), Police Station, Kumbakonam, Thanjavur District.
3.The Sessions Judge, Thanjavur.