Madras High Court
Venkatesh @ Venkatesan vs The Deputy Superintendent Of Police on 18 December, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
Crl.A(MD)No.649 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.12.2024
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.649 of 2023
Venkatesh @ Venkatesan ... Appellant/sole accused
Vs.
The Deputy Superintendent of Police,
Samayanallur Sub Division,
Madurai District,
Nagamalaipudukottai Police Station.
(in Cr.No.148 of 2022) ...Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to call for the entire records connected to the Judgment
in Spl.S.C.No.108 of 2022 on the file of the III Additional District and
Sessions Judge, (PCR Court) Madurai, dated 24.04.2023 and set aside
the conviction and sentence imposed against the appellant.
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Crl.A(MD)No.649 of 2023
For Appellant : Mr.AK.Azagarsami
For Respondent : Mr.T.Senthil Kumar,
Additional Public Prosecutor
JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.) This Criminal Appeal is filed against the conviction and sentence passed against the appellant /sole accused in the judgment dated dated 24.04.2023 passed by the III Additional District and Sessions Judge, (PCR Court) Madurai, in Spl.S.C.No.108 of 2022 by convicting and sentencing the appellant for the offence punishable under Section 341 IPC and sentenced to undergo one month simple imprisonment and to pay a sum of Rs.500/- in default, to undergo one week simple imprisonment and for the offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a sum of Rs.1,000/- in default, to undergo one year simple imprisonment and acquitted under Section 3(1) (r), 3(2) (va), 3(2) (v) of SC/ST Act (POA) Amendment Act 2014.
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2. The case of the prosecution is as follows:
(a) On 25.04.2022, after completion of the village festival, the complainant's father Seeni was returning to his residence with his associates Ramar, Pandi @ Motor Pandi, Pandi @ Kozhi Pandi in an auto. At 11:15 PM, when they were proceeding from South to North near Penna Cement shop, Nagamalaipudukkottai Aathukal Road, an auto which was driven by the accused bearing Registration No.TN 58 W 4324, came in the opposite side and dashed against the auto in which his father and others were travelling. When their auto driver questioned the accused auto driver about his rash and negligent driving, the accused abused him with filthy language “Njtpbah kfNd eP ghj;J tuNtz;baJ jhdlh”. Thereafter, he went to his auto, took a screwdriver and stabbed on the chest of his father who was sitting in the corner of the auto. The father of the complainant sustained grievous injuries and became unconscious. The persons who were accompanying the victim shouted at the accused and separated him, as otherwise, he would have died on the spot. His father was taken in a 108 ambulance and admitted to Madurai Rajaji Government Hospital. The complainant received information about the occurrence and went to the hospital to find his father unconscious. The witness Ramar narrated the incident to https://www.mhc.tn.gov.in/judis 3/45 Crl.A(MD)No.649 of 2023 the complainant. On enquiry, the complainant came to know that the name of the accused is Venkatesh @ Venkatesan, a resident of Srinivasa Colony.
(b) P.W.32, Thiru.P.Ganeshkumar, Sub Inspector of Police Nagamalai Pudukkottai went to the Government Rajaji Hospital, Madurai, and since the victim was not in a position to speak, he received the complaint from his son, Pandi P.W.1 and registered FIR Ex.P21 in crime No.148/2022, under sections 294(b), 324, 302 IPC r/w.3(1) (r), 3(2)(v) SC/ST POA Amendment Act, 2015 at about 9.00 a.m., forwarded the original to the Judicial Magistrate No.VI, Madurai, and the copies to the other Higher Officials for further course of action.
(c) On the same day, at about 10.00 a.m., P.W. 32 went to the place of occurrence and prepared observation mahazar Ex.P7 and rough sketch Ex.P22 in the presence of witnesses Raja and Sivaraja, and recorded their statements.
(d) Thereafter, he went to Government Rajaji Hospital, https://www.mhc.tn.gov.in/judis 4/45 Crl.A(MD)No.649 of 2023 Madurai and recorded the statement of Ramar and Pandi, son of the victim. Thereafter, he examined the witnesses Pandi @ Kozhi Pandi, son of Sundarraj, Pandi @ Motor Pandi, son of Vellayan and recorded their statements.
(e) On 26.04.2022 at about 13.00 hours, he arrested the accused near his auto TN 58 W4324 and recorded his statement in the presence of witnesses 1) Kannan, son of Pandi 2) Deenadayalan son of Neelamegam, and recovered the auto and the screwdriver under a recovery Mahazar Ex.P9 in the presence of the same witnesses. The accused was sent for medical examination. He was admitted in the Hospital on 27.04.2022, as in-patient and was discharged the following day. Thereafter, he was remanded. Since the victim who was admitted in the hospital succumbed to his injuries, P.W. 32 handed over the file to the Inspector for further investigation.
(f) P.W.34 Thiru. Sivakumar received the file and visited the place of occurrence. On verification, he found the observation mahazar and rough sketch to be correct. He examined witnesses Pandi, Ramar https://www.mhc.tn.gov.in/judis 5/45 Crl.A(MD)No.649 of 2023 Pandiya @ Motor Pandi, Pandi @ Kozhi Pandi, Shivaraj, Raja, Kannan and Deenadhayalan and verified their statements. On the same day, he gave a requisition letter to the Primary Medical Centre Medical Officer, Nagamalai Pudukkottai to give the first aid treatment documents. He also gave a requisition letter to 108 Ambulance Service Program Manager to give the details about the injured Seeni who was taken for further treatment.
(g) On 02.05.2022 at about 13.10 hours, after receipt of the intimation from the Government Rajaji Hospital, Madurai, he went to the Hospital and conducted an inquest on the dead body of Seeni and recorded the further statements of Pandi son of Seeni and Pandi, son of Ayyavu.
(h) Since the deceased belongs to Scheduled Caste community, he altered the sections of law from sections 294(b), 324, 307 IPC to Section 294(b), 324, 302 IPC read with section 3(1)(r), 3(1)(s), 3(2)(v) of SC/ST Act. The alteration report was marked as Ex.P.24 and it was sent in speed post to Higher Officials.
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(i) Thereafter, he gave a requisition letter to the Superintendent of Police with a request to appoint an Investigating Officer and as per the proceedings of the Superintendent of Police, he handed over the case bundles to Samayanallur Deputy Superintendent of Police Thiru. Balasundaram.
(j) P.W.36, Thiru. Balasundaram, Deputy Superintendent of Police, after receipt of the order from the Superintendent of Police in C.NO25/PROC/SJ&HR/MDU/2022 dated 02.05.2022 which was marked as Ex.P26, went to the place of occurrence on 02.05.2022 at about 14:15 hours and inspected the place of occurrence and verified the same with the observation mahazar and rough sketch, which had already been prepared and found correct. He went to the Government Rajaji Hospital, Madurai and prepared an inquest report in the presence of Panchayatars and witnesses between 14.45 and 16.15 hours and prepared the inquest report Ex.P27. Then, he sent a request letter to conduct a postmortem on the body through Head Constable 613 Vijayakumar and handed over the dead body to the doctor.
(k) P.W.33 Dr.Devi Bhiansha, Assistant professor, conducted https://www.mhc.tn.gov.in/judis 7/45 Crl.A(MD)No.649 of 2023 an autopsy on the dead body and found the following injuries :
“The following ante mortem injuries are noted on the body:
1. Surgically sutured wound measuring 1cm x 1cm noted overfront of left side of chest,3cm below from left nipple.
On dissection. The wound passes backwards & inwards and piercing the underlying muscles, vessels, nerves, intercostal space, pericardium and anterior 1/3 of left ventricle of heart measuring 0.5cm x 0.5cm x 0.5cm. Pericardial cavity contains 20ml of serosanguinous fluid.
2. Surgically sutured 'C' shaped craniotomy wound measuring 30cm x 1cm x bone deep, noted over left fronto parieto temporal region.
3. Abrasion measuring 5cm x 1cm noted over inner aspect of right forearm On dissection of Scalp, Skull & Dura:
Brown coloured subscalpal contusion measuring 12cm x 10cm noted over left fronto parietal region and 20cm x 12cm noted over left temporo parieto occipital region. A bone piece measuring 12cm x 10cm found surgically removed by left fronto parieto temporal region. Bony deficit covered with gel foam material. OTHER FINDINGS:
Peritoneal cavity-empty, Pleural cavities empty, Pericardium-described, Heart - Right side fluid blood, https://www.mhc.tn.gov.in/judis 8/45 Crl.A(MD)No.649 of 2023 left side empty, Atherosclerotic changes noted over the greater vessels; Coronaries patent; Lungs oedematous, exudes profuse watery discharge on pressure; Larynx & trachea- normal; Hyoid bone intact, Stomach contains 50ml of brown colour fluid with nil specific smell, mucosa normal, Liver, Spleen & Both Kidneys - cut section congested, Small intestine- contains 15ml of bile stained fluid with nil specific smell, mucosa -normal, Bladder-empty; Brain-surface vessels and cut section congested.
OPINION.
"The deceased would appear to have died of stab injury to chest & its complications and associated with cerebro vascular disease"
(l) Thereafter, the Investigating Officer reexamined the witnesses Pandi, son of Seeni and Pandi, son of Ayyavoo, and recorded their further statements.
(m) After post mortem, the clothes worn by the deceased viz., shirt and dhoti were received by the Head Constable 613 Thiru.Vijayakumar in form 95 - Ex.P28.
(n) On 03.05.2022, he examined the witnesses, Chinnapandi https://www.mhc.tn.gov.in/judis 9/45 Crl.A(MD)No.649 of 2023 Kanimozhi and recorded their statements. He re-examined Pandi @ Kozhipandi, Pandi @ Motor Pandi and recorded their further statements.
On 04.05.2022 he examined Ramar and recorded his further statement.
(o) On 05.05.2022, he examined the witnesses Thirupuvanam, Balu, Madhan Kumar and recorded their statements.
(p) He gave a requisition letter to Madurai West Tahsildar to issue community certificate to the Accused Venkatesan, and also applied for issuance of community certificate for the deceased Seeni, witnesses, Ramar, Pandi, Pandi @ Kozhi Pandi, Pandi @ Motor Pandi and Kanimozhi to the Tahsildar, Usilampatti.
(q) On 08.05.2022, he examined Sub Inspector Thiru.Ganeshkumar, Inspector Thiru.Sivakumar and recorded their statements.
(r) On 09.05.2022, he examined Regina, Staff Nurse, Primary Health Centre, Dr. Archana Chandrasekar, Dr. Mohan Raj, and recorded their statements.
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(s) On 10.5.2022, he sent a requisition letter to the Judicial Magistrate No.VI, Madurai to examine witnesses Ramar, Pandi, Pandi @ Kozhi Pandi, Pandi @ Motor Pandi and Kanimozhi and to record their statement under Section 164 Cr.P.C.
(t) On 10.05.2022 he handed over the recovered material objects to the concerned Court. It was registered in RPR No.15/2022, and the form 95 was marked as Ex.P29.
(u) On 12.05.2022, he issued a requisition -Ex.P.30 to the III Additional District and Session Judge to send the material objects recovered from the deceased and accused for chemical analysis.
(v) On 13.05.2022, he examined Tahsildar Thiru. Krishnan, who had issued a community certificate to the accused Venkatesan and recorded his statement. He also examined Head Constable Vijayakumar and recorded his statement.
(w) On 16.05.2022, he examined Dr. Lokesh and recorded his statement. On 16.05.2022 and 20.05.2022, he produced the witnesses https://www.mhc.tn.gov.in/judis 11/45 Crl.A(MD)No.649 of 2023 before the Judicial Magistrate for recording their 164 Cr.P.C statements.
(x) On 24.05.2022, he examined the regional transport officer, Jasmine Mercy Kamala, and recorded her statement on 25.05.2022. He examined Thiru.Chandra Mohan, the owner of the auto bearing registration no. TN 58 W 4324 and recorded his statement. Thereafter, he examined Dr. Devi Biyansha and Forensic officer Thiru Krishnan, and recorded their statements. On 20.06.2022, he received the community certificate for the witnesses and recorded the statement of Tahsildar Karuppaiah, Usilampatti. He sent a request letter to the tahsildar, Periayur with a request to issue a community certificate to witness Pandi @ Motor Pandi.
(y) On 27.06.22, he examined Ravi, Tahsildar, Peraiyur and recorded his statement. He sent a letter to the Assistant Engineer, Electricity Department, Nagamalai, Pudukottai, to ascertain any power cut during the time and place of the occurrence and to determine the area of light that was spread over from the electric post at the place of occurrence. On 29.06.2022, he received the community certificate of Pandi @ Motor Pandi and recorded the statement of Thiru. Ravi, https://www.mhc.tn.gov.in/judis 12/45 Crl.A(MD)No.649 of 2023 Peraiyur Tahsildar. He received a reply from the Assistant Engineer, TNEB Thiru. Senthilkumar, and recorded his statement, He recorded statements of Constable 1315 Thiru.Boomiraj and 1783 Thiru.Sudalai Madhan. On 10.07.2022, he recorded the statements of Alex pandian and Sivapandi.
(z) On 13.07.2022, he recorded statements of Dr. Sheik Iqbal Ushen who had treated the accused and obtained the accident register. He recorded the statement of SSI Thiru.Ashok Kumar. He completed the investigation on 13.07.2022 and filed a charge sheet against the accused.
3. After perusing the records, the III Additional District and Sessions Judge took up the case in Spl. S.C.No.108 of 2022 and issued summons to the accused. After the appearance of the accused, copies of all the prosecution records were furnished to him, free of cost under Section 207 Cr.P.C.
4. Thereafter, the learned Sessions Judge, after perusing the records and hearing both sides, framed charges against the accused under Sections 341, 302 IPC and Section 3(1) (r), 3(2) (va), 3(2) (v) of SC/ST https://www.mhc.tn.gov.in/judis 13/45 Crl.A(MD)No.649 of 2023 Act (POA) Amendment Act 2014, read over and explained them to the accused. The accused denied the charges and claimed to be tried. Therefore, the case was posted for trial.
5. On the side of the prosecution, P.W.1 to P.W.36 were examined and Ex. P1 to Ex. P30 were marked. Material Objects M.O.1 to M.O.4 were produced. On the side of the accused, no witness was examined.
6. After a full trial, the Trial Court convicted the accused under Sections 341 and 302 IPC. For the offence punishable under Section 341 IPC, the accused was sentenced to undergo one month simple imprisonment and to pay a sum of Rs.500/- in default, to undergo one week simple imprisonment. For the offence punishable under Section 302 IPC, he was sentenced to undergo imprisonment for life and to pay a sum of Rs.1,000/- in default, to undergo one year simple imprisonment. He was acquitted under Section 3(1) (r), 3(2) (va), 3(2) (v) of SC/ST Act (POA) Amendment Act 2014. Against the said conviction, the present Criminal Appeal is filed on the following among other grounds:-
(a) That the witnesses of P.W.2 to P.W.6 are unknown to the https://www.mhc.tn.gov.in/judis 14/45 Crl.A(MD)No.649 of 2023 accused who saw the accused only at the time of occurrence. The prosecution has miserably failed to conduct the test identification parade, which creates serious doubt about the prosecution case.
(b) The trial court ought to have considered that the FIR was registered on 26.04.2022 at about 09.00 a.m., and the intimation memo received by the Sub Inspector of Police from the Government Rajaji Hospital, Madurai, was not marked before the trial court.
(c) P.W.18 Dr. Archana Chandrasekar says that the deceased has taken initial treatment in Primary Health Center, Nagamalai, Pudukottai, but the Accident register entry and referral slip were not marked by the Doctor before the trial court, which creates serious doubt.
(d) The FIR reached the concerned Judicial Magistrate Court only on 27.04.2022 at about 12.00 noon, even though the travelling time between the respondent police station and the Judicial Magistrate Court is only 30 minutes.
(e) P.W.33 postmortem doctor was examined by the trial court and https://www.mhc.tn.gov.in/judis 15/45 Crl.A(MD)No.649 of 2023 Ex.P23 postmortem report has been marked through him. At the time of chief examination of P.W.33, screwdriver M.O.1 was not shown to him to obtain his opinion. It is the bounden duty of the prosecution to show the screwdriver at the time of examining the doctor. Moreover, P.W.33 admitted in his cross-examination that the injury may happen due to an accident.
(f) The trial court failed to note that the accused also sustained injuries and was treated as an inpatient. The injury of the accused was not explained by the prosecution.
(g) That the trial court failed to note that there was an accident that gave rise to a sudden fight between the deceased and accused and that the occurrence was not a preplanned one.
7.The learned Additional Public Prosecutor appearing for the respondent states that both the accused and deceased had a quarrel and pursuant to it, the accused inflicted an injury on the chest of the deceased. The eyewitnesses corroborated the medical evidence. The prosecution proved its case beyond all reasonable doubt that the accused https://www.mhc.tn.gov.in/judis 16/45 Crl.A(MD)No.649 of 2023 committed the offence and prayed to pass orders accordingly.
8.On careful perusal of the entire records, the prosecution case unfolding from the evidence of P.W.1 to P.W.36 is as follows:
(i) P.W.1, the complainant and son of the deceased deposed that his father was a Village Artist. He used to go to Temple festivals and funeral ceremonies along with Ramar, clown artist, Pandi @ Kozhipandi who plays Pumbai, and Pandi @ Motor Pandi who plays Urumi and Karagaatam, and dance artist Kanimozhi. On 25.04.2022, all of them went to Nilaiyur near Thirumangalam for a funeral ceremony in an auto belonging to one Aryapatti Pandi, son of Ayyavoo. The said function was over by night, and they returned to their place in the same auto. Near Aathukal Burial ground, Nagamalai Pudukottai, opposite to Penna Cement Shop, an auto bearing registration no. TN 58 W 4324 driven by the accused dashed against their auto. The driver of the auto got down and questioned about the same. Both the auto drivers had wordy quarrels.
Thiru. Ramar told the accused he was at fault but the accused driver slapped Ramar. The complainant’s father told him that they belonged to a scheduled caste community and that they were returning after performing in a funeral function. On enquiring as to why the accused stopped them, https://www.mhc.tn.gov.in/judis 17/45 Crl.A(MD)No.649 of 2023 the accused started abusing him “Njtpbah kfNd eP ghj;J tuNtz;baJ jhdlh”. and parked his auto in front of their auto. He took a screwdriver from his auto and stabbed PW1’s father (deceased) in the chest. The victim fell down and became unconscious. The accused fled from the place of occurrence. The persons who were accompanying the victim took him to the Government Hospital at Nagamalai, Pudukottai. Thiru. Ramar called P.W.1 over the phone and informed him that his father had been admitted to the hospital. He, his mother and brother came to the hospital. His father did not gain consciousness. He came to know that the name of the accused was Venkatesh, a resident of Srinivasa Nagar. His father was taken to Madurai Government Hospital in a 108 ambulance and admitted to the intensive care unit. He lodged the complaint Ex.P1 with the police. His father died on 02.05.2022.
(ii) P.W.2 Ramar, one of the eyewitnesses to the occurrence, deposed that on 25.04.2022, he, Seeni (deceased) and others went to Nilayur for a funeral ceremony. At about 10.30 p.m., while they were returning in an auto, near Burial ground of Nagamalai Pudukkottai, another auto driven by the accused that was coming in the opposite direction, dashed against their auto. Both the auto drivers employed https://www.mhc.tn.gov.in/judis 18/45 Crl.A(MD)No.649 of 2023 filthy language and engaged in a wordy quarrel. When he questioned the same, the accused, Venkatesan slapped him. Seeni (deceased) got down from the auto and told the accused that they belonged to the scheduled caste community and were village artists engaged in singing and dancing in funeral houses. The accused took a screwdriver and stabbed him on the left chest after which he became unconscious. They took him to the hospital in a 108 ambulance and informed his family. Subsequently, he died.
(iii) P.W.3 Pandi @ Kozhi Pandi, another eyewitness, corroborated the evidence of P.W.2. He identified the weapon used by the accused, the clothes worn by deceased, namely, red colour full slack shirt, white dhoti with blood stains, and stated that the auto was driven by the accused. He had also deposed about the statement given by him before the Judicial Magistrate under section 164 Cr.P.C.
(iv) P.W.4 Pandi @ Motor Pandi supported the evidence of P.W.2 by stating that on the date of occurrence, the accused dashed against their vehicle and stabbed victim Seeni with screwdriver. He also stated that his statement was recorded by the Judicial Magistrate under https://www.mhc.tn.gov.in/judis 19/45 Crl.A(MD)No.649 of 2023 section 164 Cr.PC.
(v) Another eyewitness P.W.5 Kanimozhi stated that on the date of occurrence, the accused dashed against the auto in which they were travelling. Both the auto drivers had wordy quarrel. Ramar told the accused that he was at fault for which the accused slapped him. Seeni (deceased) told him that they belonged to a scheduled caste community and they performed in the village festivals during the day and enquired as to why he was creating a problem. In response, the accused abused him, took a screwdriver and stabbed him on his left chest. The injured Seeni was admitted to the hospital. She also identified the clothes worn by the deceased and the weapon used for the occurrence. She also stated that her statement was recorded by the Judicial Magistrate.
(vi) P.W.6 Pandi, who is the auto driver in which the deceased and others were travelling also supported the evidence of P.W.2 to P.W.5. He also stated that his statement was recorded by the Judicial Magistrate.
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(vii) All the eyewitnesses stated in one voice that the accused stabbed the deceased with a screwdriver. Their evidence corroborates each other, and except minor contradictions which normally happen due to lapse of time, their evidence is consistent and credible. The accused is a stranger, and they do not have any enmity to foist a false case against him. The appellant counsel was unable to shake the evidence presented by the prosecution.
(viii) P.W.7 Sivaraj spoke about the preparation of observation Ex.P7 and rough sketch Ex.P22 by the Investigating Officer. The rough sketch showed the place of occurrence.
(ix) P.W.8 deposed about the arrest and confession of the accused in the presence of his friend Kannan and recovery of the screwdriver under recovery mahazar. The admitted portion of the confession was marked as Ex.P8 and the recovery Mahazar was marked as Ex.P9. He identified the photo of the auto M.O.4.
(x) P.W.13 Chandra Mohan, driver of the auto bearing Registration No.TN 58 W 4324, deposed that the accused Venkatesh https://www.mhc.tn.gov.in/judis 21/45 Crl.A(MD)No.649 of 2023 requested him to hand over his auto for two days, and he handed over the same. The auto was in the custody of the accused from 24.04.2022 to 25.04.2022. He was informed by the police that on 26.04.2022, the auto was seized by the police in a criminal case. He filed an application through Court and took the custody of the auto which reveals that his auto was in the custody of the accused.
(xi) P.W.14 Regina, Staff Nurse, deposed that on 26.04.2022 at about 12.00 p.m., the victim Seeni was brought with injury on his left chest. He was in an unconscious state. She gave first-aid and informed the Medical Officer. The Doctor requested her to refer him to the Government Rajaji Hospital, Madurai through a 108 ambulance and she referred the injured Seeni to the Government Rajaji Hospital, Madurai.
(xii) P.W.15 spoke about handing over of the FIR and Section alteration report to the Judicial Magistrate No.VI, Madurai.
(xiii) P.W.18 Dr.Archana Chandrasekar corroborated the evidence of P.W.14.
(xiv) P.W.19 Jasmin Mercy Kamala, Motor Vehicle https://www.mhc.tn.gov.in/judis 22/45 Crl.A(MD)No.649 of 2023 Inspector, deposed that she inspected the auto bearing Registration No.TN 58 W 4324, which was driven by the accused, noted the following damages: The front wheel arch was damaged, front right side head light indicator was broken, the right-side rear-view mirror was broken and also the front right-side body was pressed inward and damaged. She also examined the auto bearing Registration No.TN 57AA 4654, but she did not find any damage. She issued certificates for the vehicle bearing registration no. TN 58W 4324 and TN 57 AA 4654 marked as Ex. P12 and as Ex.P30. respectively.
(xv) P.W.20 Thiru.Vijayakumar spoke about the recovery of clothes worn by the deceased and handed over the same to the Inspector of Police in Form 95 and submitted the letter to the Forensic Science Department.
(xvi) P.W.21 Karthikeyan, Grade I Police Constable spoke about handing over the records to the Judicial Magistrate No.VI, Madurai.
(xvii) P.W.22 Boomirajan, Grade I Police Constable, who https://www.mhc.tn.gov.in/judis 23/45 Crl.A(MD)No.649 of 2023 took the accused to Government Rajaji Hospital for treatment, deposed that the accused was admitted as an inpatient. P.W.23 Alexpandian, Head Constable spoke about the discharge of the accused from the hospital. He produced the accused before the Judicial Magistrate No. VI.
(xviii) P.W.26 Dr. Mohanraj, Government Rajaji Hospital, Madurai, deposed that the victim Seeni was admitted to the hospital and underwent an operation. On 02.05.2022 at about 10.45 a.m., the victim died. He issued the death intimation Ex.P14.
(xix) P.W.27 Dr.Sheikh Iqbal Ushen deposed that on 26.04.2022 at about 11.00 p.m., the accused Venkatesh was brought to the hospital by Grade II Constable Thiru. Sudalai Madan and on enquiry, the accused informed that on 25.04.2022 at about 9.30 p.m., near Nagamalai Pudukkottai Pudukulam, an auto dashed against his auto. He found blood clots in his right hand measuring 5 × 5 cm and a blood clot on his cheek 2 x 1 cm. He was admitted as an in-patient. . He issued a certificate that the injury sustained by him was grievous in nature and the accident register was marked as Ex.P15.
https://www.mhc.tn.gov.in/judis 24/45 Crl.A(MD)No.649 of 2023 (xx) Some of the witnesses spoke about the issuance of the community certificate to the accused and deceased. Since the offence under Section 3(1) (r), 3(1) (s), 3(2) (v) of SC/ST Act was not proved before the trial court, and the trial court acquitted the accused for the said offences. Therefore, we have decided not to discuss about the evidences related to the above-mentioned offences in detail.
(xxi) P.W.29 Thiru.Navaneetha Krishnan, Madurai Forensic Scientific Officer, deposed that he received the material objects from Head Constable Vijayakumar, and after examination, he found blood stains on item Nos.1 & 3 viz., 1. Screwdriver with green synthetic handle, measuring about 18 cm in length in which dark brown stains were found. 3. White Dhoti with a blue border in which dark brown stains were found. Item Nos.1 and 3 contained blood, but no blood stains were found on item No.2. The same was marked as Ex.P17 and serology report reveals that the result of the grouping test is inconclusive in items Nos.1 and 3, and the same was marked as Ex.P18.
(xxii) P.W.31, Thiru.Senthil Kumar, Assistant Executive Engineer, TNEB, deposed that on 25.04.2022 at about 11.15 p.m., there https://www.mhc.tn.gov.in/judis 25/45 Crl.A(MD)No.649 of 2023 was no power cut throughout the day and the distance that the light spreads from the lamp post was over 50 feet. The certificate issued by the above witness was marked as Ex.P20.
(xxiii) P.W.32 deposed about the registration of FIR and the part investigation conducted by him viz., preparation of observation mahazar, rough sketch, arrest of the accused, recovery of material objects etc. (xxiv) P.W.33, Dr.Devi Bhiansha deposed about the postmortem conducted on the dead body.
(xxv) P.W.34, Thiru.Sivakumar, Inspector of Police, deposed about the part investigation and alteration of section of law.
(xxvi) P.W.35 Thiru.Santhana Kumar, Judicial Magistrate No.VI, Madurai deposed about 164 statement of witnesses.
(xxvii) P.W.36, Thiru.Balasundaram, Deputy Superintendent of Police spoke about the further investigation and preparation of final https://www.mhc.tn.gov.in/judis 26/45 Crl.A(MD)No.649 of 2023 report.
9. Though the learned counsel appearing for the appellant raised few grounds for appeal, but during his argument, he admitted that he was only arguing for a reduction of sentence and not for acquittal. To support his contention, he relied on the judgment rendered by the Hon'ble Supreme Court in State of Andhra Pradesh Vs. Rauavarapu Punnayya and another reported in 1976 (4) Supreme Court cases 382.
10.The learned Additional Public Prosecutor appearing for the State argued that P.W.1 to P.W.6 who were eyewitnesses to the occurrence clearly deposed about the occurrence. He further stated that both the accused and the deceased had a quarrel due to the collision of the two autos. Suddenly, the accused took a screwdriver and stabbed Seeni (deceased) on his chest. Immediately, the injured was admitted to the hospital and treated. But he succumbed to his injuries on 02.05.2022, a week from the date of occurrence. He argued that the ocular evidence supported the medical evidence and prayed to pass suitable orders.
11. Now this court is satisfied that P.W.1 to P.W.6 who are https://www.mhc.tn.gov.in/judis 27/45 Crl.A(MD)No.649 of 2023 the eyewitnesses to the occurrence, clearly spoke about the occurrence, and stated in unison that both the accused and the auto driver had a fight and exchanged abusive words. When the witness Ramar-P.W.2 questioned the same, the accused slapped him. Subsequently, when the deceased enquired as to why the accused was creating problems, the accused took a screwdriver and stabbed the victim on his chest.
12. P.W.1, son of the deceased, received the message from the eyewitnesses, and when he came to the hospital, he found his father in an unconscious state. Thereafter, he had given the complaint to the Police. Evidence of eyewitnesses is clear, cogent and without any major contradiction. The witness also spoke about the occurrence before the Judicial Magistrate No.VI, Madurai. Their evidence could not be shaken by the defense during cross-examination. The accused was a stranger to the witnesses, and they had no reason to falsely implicate him for the offence. Further the ocular evidence supported the medical evidence.
13. The Assistant Executive Engineer of TNEB clearly stated that there was no power cut at the place of occurrence and an electric post was also available near the place of occurrence. The https://www.mhc.tn.gov.in/judis 28/45 Crl.A(MD)No.649 of 2023 observation Mahazar Ex.P7 clearly mentioned about the availability of an electric pole at the place of occurrence. Even in the rough sketch Ex.P22, there was a mention of the electric pole near the occurrence by the Inspector of Police who conducted the investigation.
14. P.W.13 Thiru.Chandramohan, clearly stated that on the date of occurrence, his auto bearing Registration No.TN 58 W 4324 was taken by the accused.
15. Therefore, in all probability the prosecution has proved the commission of offence by the accused beyond all reasonable doubts.
16. The learned counsel for the appellant argued that the offence committed by the accused would not fall under Section 300 IPC, but it would fall under Section 299 IPC i.e., culpable homicide not amounting to murder. Normally Murder, under Section 300 of the IPC, requires intention, knowledge, and premeditation to cause death. Culpable homicide, as defined under Section 299 of the IPC, involves killing without the specific intent to cause death, but the act must have been done with the knowledge that it is likely to cause death or serious https://www.mhc.tn.gov.in/judis 29/45 Crl.A(MD)No.649 of 2023 harm. The distinguishing factors between culpable homicide and murder are as follows:
“What distinguishes these two offences is the presence of a special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. These four mental attitudes are stated in Section 300 IPC as distinguishing murder from culpable homicide. Unless the offence can be said to involve at least one such mental attitude it cannot be murder.”
17. For better appreciation, it is relevant to extract Section 300 IPC along with its comments from the Indian Penal Code, by Ratanlal and Dhirajlal (32nd enlarged edition):-
“300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— Secondly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended https://www.mhc.tn.gov.in/judis 30/45 Crl.A(MD)No.649 of 2023 to be inflicted is sufficient in the ordinary course of nature to cause death, or— Fourthly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.”
18. As per penal provision under S.300 IPC, except the following exceptions, culpable homicide would amount to murder.
Exception 1- When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following https://www.mhc.tn.gov.in/judis 31/45 Crl.A(MD)No.649 of 2023 provisos:-
First- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing. or doing harm to any person.
Secondly- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly- That the provocation is not given by anything done in the lawful exercise of the right of private defense Exception 2- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defense of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense.
Exception 3- Culpable homicide is not murder if the offender, being a public servant or aiding. a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.- Culpable homicide is not murder if it https://www.mhc.tn.gov.in/judis 32/45 Crl.A(MD)No.649 of 2023 is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Exception 5- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.”
19. To support his contention, the learned counsel for the appellant relied upon the judgement in State of Andhra Pradesh Vs. Rauavarapu Punnayya and another reported in 1976 (4) Supreme Court cases 382. It was held therein as follows :
“12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not viceversa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to. murder'. For the pur- pose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degress of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in s. 300 as 'murder'. The second may be termed as https://www.mhc.tn.gov.in/judis 33/45 Crl.A(MD)No.649 of 2023 'culpable homicide of the second degree'. This is punishable under the l st part of s. 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. Culpa- ble homicide of this degree is punishable under the second Part of s. 304.
13. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of ss. 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
Section 299 Section 300 A person commits culpable Subject to certain exceptions homicide if the act by which Culpable homicide is murder the death is caused is done..... if the act by which death is caused is done...
INTENTION
(a) With the intention of (1) With the intention of causing death; or causing death; or https://www.mhc.tn.gov.in/judis 34/45 Crl.A(MD)No.649 of 2023
(b) With the intention of (2) With the intention of causing such bodily injury as causing such bodily injury as is likely to cause death; or the offender known to be likely to cause the death of the person to whom the harm is caused; or (3) 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; or KNOWLEDGE
(c) with the knowledge that act (4) With the knowledge that is likely to cause death. the Act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
14......
........
20. Clause (c) of s. 299 and cl. (4) of s. 300 both require knowledge of the probability of the causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that cl. (4) of s. 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general--as distinguished https://www.mhc.tn.gov.in/judis 35/45 Crl.A(MD)No.649 of 2023 from a particular person or persons---being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
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 s. 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of s. 300, 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 s. 300. If the answer to this question is in the negative the offence would be 'culpable homicide not https://www.mhc.tn.gov.in/judis 36/45 Crl.A(MD)No.649 of 2023 amounting to murder', punishable under the first or the second part of s. 304, depending. respectively, on whether the second or the third Clause of s. 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in s. 300, the offence would still be 'culpable homicide not amounting to murder' punishable under the First Part of s. 304, Penal Code.”
20. In the case of Anda v. State of Rajasthan, reported in AIR 1966 SC 148, the two relevant Sections 299 and 300 are comprehensively analyzed, and the relevant observations are made at page 151 in para 7. Before we refer to those observations, we would refer to certain observations made earlier. They are as under:-
“The offence of culpable homicide involves the doing of an act (which term includes illegal omissions)
(a) with the intention of causing death, or (b) with the intention of causing such bodily injury as is likely to cause death or (c) with the knowledge that the act is likely to cause death. If the death is caused in any of these three circumstances, the offence of culpable homicide is said to be committed................ Intent and knowledge in the ingredients of the section postulate the existence of a positive mental attitude and this mental https://www.mhc.tn.gov.in/judis 37/45 Crl.A(MD)No.649 of 2023 condition is the special mens rea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the death of the person.
Sec. 300 tells us when the offence is murder and when it is culpable homicide not amounting to murder. Sec. 300 begins by setting out the circumstances when culpable homicide turns out into murder which is punishable under sec. 302 and the exceptions in the same section tell us when offence is not murder but culpable homicide not amounting to murder punishable under sec. 304. Murder is an aggravated form of culpable homicide. The existence of one of four conditions turns culpable homicide into murder while the special exceptions reduce the offence of murder again to culpable homicide not amounting to murder.” (Emphasis supplied) (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling https://www.mhc.tn.gov.in/judis 38/45 Crl.A(MD)No.649 of 2023 within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, https://www.mhc.tn.gov.in/judis 39/45 Crl.A(MD)No.649 of 2023 are fulfilled and the offence would be murder.”
21. In this case, the accused had no previous enmity with the deceased. Even prior to the occurrence, they had no acquaintance with each other. On the date of occurrence, a quarrel ensued between the accused and the auto driver Pandi PW6, due to a collision between the two autos. P.W.2 Ramar in his evidence, clearly stated that both the accused and P.W.6 had a fight, and both used abusive language against each other. At that time, when P.W.2 Ramar stated that the accused was at fault, the accused assaulted him. When the deceased also questioned him as to why he was creating problems, the accused due to his anger attacked him with a screwdriver.
22. The sequence of acts as available from the records reveals that there was a collision between the two autos due to which the vehicle of the accused was damaged extensively as proved by Ex.P12 MVI report. It is also proved that there was no mechanical defect in the vehicle in which the deceased was travelling along with the other eye witnesses. It is further proved that the accused had also sustained grievous injuries. The accident register issued under Ex.P.15 proved that https://www.mhc.tn.gov.in/judis 40/45 Crl.A(MD)No.649 of 2023 he sustained grievous injuries in the accident. Therefore, due to the above act, he had a fight with P.W.6. When P.W.2, and Seeni (deceased) questioned him about his conduct and P.W.2 stated that he was at fault, due to sudden provocation, he took a screw driver and stabbed the deceased. He did not intend to come to the spot and attack the deceased. There is no motive or premeditation to attack the deceased but it happened due to sudden provocation without any premeditation. Therefore, the offence committed by the accused does not not fall under section 302 IPC, but falls under Section 304(ii) IPC because it is done with the knowledge, that the act is likely to cause death. Though the injury was inflicted on the vital part viz., chest, he gave only a single blow. He knew that the injury caused by him may cause death, but he had no intention to do it. The incident took place due to a petty quarrel which led to sudden provocation. The accused attacked the deceased and death was caused, but it has been proved that he inflicted a single stab injury on his chest.
23. We therefore hold that the offence committed by the appellant falls under culpable homicide not amounting to murder and is punishable under the second part of section 304 IPC. The first part of https://www.mhc.tn.gov.in/judis 41/45 Crl.A(MD)No.649 of 2023 section 304 would apply when there is such intention to cause death or bodily injury, whereas the second part would apply when there is no such intention but the act is done with the knowledge that it is likely to cause death.
24. Relying on the ratio laid down in the above judgments, we hold that the offence committed by the accused does not attract Section 300 IPC, but falls under Section 304(ii) IPC. Therefore, we modify the conviction of the accused from Section 302 IPC to Section 304(ii) IPC and modify the sentence of life imprisonment. We hereby sentence the accused to undergo six (6) years rigorous imprisonment with fine of Rs.5,000/- (Rupees Five Thousand only) in default, to undergo three months simple imprisonment.
25. In the result,
(i) This Criminal Appeal is partly allowed.
(ii) In so far as the charge under Section 341 IPC is concerned, the order of the trial Court is confirmed.
(iii) The conviction under Section 302 IPC passed by the learned III Additional District and Sessions Judge, (PCR Court) Madurai, https://www.mhc.tn.gov.in/judis 42/45 Crl.A(MD)No.649 of 2023 dated 24.04.2023, in Spl.S.C.No.108 of 2022 is set aside and the conviction is modified to Section 304(ii) IPC.
(iv) Accordingly, the sentence of Life Imprisonment passed by the Court below is set aside and the appellant is sentenced to undergo Rigorous Imprisonment for six (6) years and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) and in default to pay the fine amount, to undergo Simple Imprisonment for three months.
(v) The period of sentence already undergone by the accused/appellant shall be set off under Section 428 Cr.P.C., as against the substantive sentence.
(vi) The trial Court is directed to secure the appellant/accused and commit him to the prison to undergo the remaining period of sentence.
(G.R.S., J.) & (R.P., J.)
18.12.2024
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
https://www.mhc.tn.gov.in/judis
43/45
Crl.A(MD)No.649 of 2023
To
1.The III Additional District and Sessions Judge, (PCR Court) Madurai.
2.The Deputy Superintendent of Police, Samayanallur Sub Division, Madurai District, Nagamalaipudukottai Police Station.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, ER/VR Section, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 44/45 Crl.A(MD)No.649 of 2023 G.R.SWAMINATHAN, J.
AND R.POORNIMA, J.
RM Judgment in Crl.A(MD)No.649 of 2023 18.12.2024 https://www.mhc.tn.gov.in/judis 45/45