Mari @ Mariyappan v. State: Inspector of Police,N-1, Rayapuram Police Station, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 03.03.2010CoramTHE HONOURABLE MR. JUSTICE M. CHOCKALINGAM ANDTHE HONOURABLE MR. JUSTICE C.S. KARNANCrl. A. No.735 of 2009Mari @ Mariyappan... Appellant/Single Accused..Vs..State: Inspector of Police,N-1, Rayapuram Police Station,Chennai.... Respondent/ComplainantCrime No.319/07Appeal filed under Section 374 (2) of Cr.P.C. against thejudgment dated 6.10.2009 passed by the Court of Sessions at Chennaiin S.C. No.470 of 2007.For Appellant : Mr. S. DoraisamyFor Respondent : Mr. V.R. Balasubramanian Addl. Public ProsecutorJUDGMENT(Judgment was delivered by M. CHOCKALINGAM, J.)Challenge is made to the judgment dated 6.10.2009 passed bythe Court of Sessions at Chennai in S.C. No.470 of 2007, whereby thesole accused stood charged, tried and found guilty for the offencesunder Sections 307 and 302 of the Indian Penal Code and sentenced toundergo 7 years Rigorous Imprisonment and to pay a fine of Rs.5,000/-in default to undergo Rigorous Imprisonment for three months underSection 307 of the Indian Penal Code and to undergo Life Imprisonmentand to pay a fine of Rs.10,000/- in default to undergo RigorousImprisonment for six months under Section 302 of the Indian PenalCode.2. The short facts necessary for the disposal of the casecan be stated thus:(i) P.W.1 and the deceased are brothers. The accused wasresiding in the next house. They are all residing in a row of houses https://hcservices.ecourts.gov.in/hcservices/ in O.S.H. Road, Royapuram, Chennai. On 10.8.2007 at about 11 p.m.,in front of his house, the accused quarreled with his wife Devi. Atthat time P.W.1 was sitting outside his house on a cot and hisbrother deceased Sekar actually slept in his house. The deceasedtold the accused not to shout. On hearing the noise, the accusedscolded him in a filthy language and threatened to kill him.Immediately P.W.1 warned the accused not to speak so. (ii) On hearing this, the accused took M.O.1 knife andstabbed P.W.1 on his abdomen. He fell down. The deceased, who wasinside the house, came outside and questioned him. Immediately, theaccused stabbed him on his right side abdomen, right thigh and leftbuttock. P.Ws.2 and 3 have witnessed the same. The accused ran awayfrom the scene of occurrence. One Ekambaram took P.W.1 and thedeceased to the Stanley hospital. (iii P.W.4 gave treatment to both of them and Ex.P3 is thecopy of accident register for P.W.1 and Ex.P2 is the copy of accidentregister for the deceased. P.W.1 gave complaint Ex.P1 to respondent-police, who in turn registered the case for the offences underSections 341, 327 , 307 and 506(2) of the Indian Penal Code. TheFirst Information Report Ex.P12 was despatched to the Court. (iv) P.W.13 Inspector took up investigation, proceeded tothe spot, made an inspection and prepared Observation mahazar Ex.P13and also rough sketch Ex.P14. He also examined the deceased andP.W.1 and recorded their statements. (v) On 11.8.2007, the accused was arrested. At the time ofarrest, he voluntarily gave confession statement and the same wasrecorded in the presence of witnesses. The admissible portion of thesame was marked as Ex.P6. Pursuant to the confession statement, heproduced M.O.1 knife which was recovered under mahazar Ex.P15.Thereafter, P.W.1 was discharged from the hospital on 20.8.2007.Ex.P4 wound certificate was issued to the effect that the injury wassimple in nature. The brother of P.W.1 Sekar, who was admitted inthe hospital after the occurrence, despite treatment, died. Hence,P.W.13 altered the offence to Section 302 of the Indian Penal Codeand sent Ex.P16 Express report to the Court.(vi) P.W.13 conducted inquest on the dead body in thepresence of witnesses and the inquest report is marked as Ex.P17.Thereafter, he sent the dead body for post-mortem. P.W.11 Doctor,who has conducted post-mortem, issued Ex.P11 post-mortem Certificateand P.W.11 Doctor opined that the death was due to septicaemea andrenal failure. In the said Certificate, the following injuries arenoted:-" An infected sutured stab wound 2.5 x 1cm xcavity deep on right illac fossa. https://hcservices.ecourts.gov.in/hcservices/ A sutured wound 32 cm long in the midline ofabdomen from xiphistemum to supra pubic region.On removal of sutures the margings are infected(surgical wound)A sutured wound 2.5x1x3cm on inner aspect ofmiddle third of right thigh. On removal ofsutures the margins are irregular.On left flank compressing tube jejunostomyand feeding jejunostomy found done (surgical)"(vii) On completion of investigation, final report isfiled. The case was committed to the Court of Sessions. Necessarycharges were framed against the accused.3. In order to substantiate its case, the prosecutionexamined 13 witnesses and relied on 17 documents and also relied onM.O.1. On completion of examination of witnesses on the side of theprosecution, when the accused was questioned under Section 313 of theCriminal Procedure Code, he denied them as false. No witness wasexamined on the side of the accused.4. The Trial Court, after hearing the arguments advanced byeither side and scrutinised the materials available on record, foundthe accused guilty under Sections 307 and 302 of the Indian PenalCode and awarded the punishment as referred to above. Hence thisappeal is filed at the instance of the appellant.5. Advancing arguments on behalf of the appellant, learnedcounsel Mr. S. Doraisamy would submit that in the instant case, theevidence adduced by the prosecution is neither reliable nortrustworthy. P.W.1 and the deceased are brothers. Except P.W.1,P.Ws.2 and 3 were examined as eye witnesses. A scrutiny of evidencegiven by witnesses P.Ws.1 to 3 would clearly indicate that there arelot of discrepancies on the material facts. Apart from this, all thethree witnesses have turned hostile. Hence, their evidence shouldnot be relied.6. Learned counsel added further that in the instant case,the medical opinion canvassed by the prosecution would not supportthe prosecution. Insofar as P.W.1 was concerned, the accused wascharged for attempt to murder. The opinion canvassed through P.W.4Doctor would clearly indicate that all the injuries are simple.Insofar as the deceased was concerned, the post-mortem Certificateclearly indicate that he died septicaemea and renal failure. He wasadmitted in the hospital on 10.08.2007, but he died only on 22.8.2007i.e. after the period of ten days. During the said interval, anoperation was conducted and the Doctor's opinion clearly indicates https://hcservices.ecourts.gov.in/hcservices/ that the deceased died out of septicaemea and renal failure. Theprosecution has failed to produce the medical sheets in respect oftreatment taken by the deceased to prove its case.7. Learned counsel further added that even assuming theprosecution has proved its case that it was the accused who stabbedthe deceased and caused his death, the act of the accused would notattract the penal provisions of murder. Pursuant to the incident, hewas admitted in the hospital and an operation was done and after tendays, he died due to renal failure. Hence, Section 302 of the IndianPenal Code cannot be applied to the present facts of the case. Atbest, it would attract section 324 of the Indian Penal Code. Insofaras P.W.1 was concerned, the injuries that were caused were simple innature. Pursuant to the quarrel, neither P.W.1 nor the deceased wasattacked by the accused with an intention. The Trial Court shouldhave acquitted the accused, but the Trial Court has taken anerroneous view in finding the accused guilty under Section 307 of theIndian Penal Code and also for murder under Section 302 of the IndianPenal Code. Hence, the judgment passed by the Trial Court has got tobe set aside.8. This Court heard the learned Additional PublicProsecutor on the above contentions. 9. This Court paid its anxious considerations on the abovecontentions. The case of the prosecution is that the incident hadtaken place on 10.8.2007 at 11 p.m. in front of the house of theaccused and the deceased. During relevant time, as per the evidenceavailable, P.W.1 and the deceased, who are brothers, were living inthe adjacent house of the accused. On 10.8.2007 at about 11 p.m., infront of his house, the accused was quarrelling with his wife. Thedeceased Sekar was sleeping inside the house, while P.W.1 was sittingon a cot in front of his house. On hearing the noise, the deceasedSekar was telling the accused from inside to stop the noise. Theaccused talked ill of him in a filthy language. 10. When P.W.1 intervened, the accused being provoked wentinside and took M.O.1 knife and stabbed him on his abdomen. Onseeing this, when the deceased intervened, the accused attacked himalso with M.O.1 knife on his right abdomen, right thigh and leftbuttock. Insofar as this part is concerned, not only P.W.1, who isthe injured witness but also P.Ws.2 and 3 have spoken to the fact.From this, it is quite clear that before the incident, there was aquarrel and due to wordy quarrel, the incident had taken place andthe deceased was attacked by the accused at that time. Thisparticular part of ocular testimony is fully corroborated throughmedical evidence by P.W.4 Doctor attached to Stanley Hospital, whoadmitted P.W.1 and the deceased. 11. P.W.1 had treatment till 20.8.2007 and the Accident https://hcservices.ecourts.gov.in/hcservices/ Register was marked as Ex.P3. When Ex.P3 accident register is lookedinto, it is quite clear that the Doctor has noted that the injury issimple. It should not be forgotten that the accused had stabbed himat the time of quarrel not with an intention to cause his death.Hence the act of the accused insofar as P.W.1 was concerned wouldattract the penal provisions of Section 324 of the Indian Penal Codeand not Section 307 of the Indian Penal Code. 12. Insofar as deceased is concerned, the medical opinioncanvassed through P.W.4 Doctor would clearly indicate that he wasunder treatment from 10.8.2007 to 22.8.2007, on which date he died.P.W.11 Doctor, who has issued post-mortem Certificate hascategorically opined that the deceased died due to septicaemea andrenal failure. It is true that when he was stabbed by the accused,he was taken to the hospital and given treatment. It is an admittedposition that he died after a period of 12 days. The prosecutionshould have produced all the materials pertains to the treatment likecase sheets etc, but nothing was produced.13. The added circumstance is the opinion of the Doctorthat the deceased died out of septicaemiea due to the stab wound andalso renal failure. As could be seen in Ex.P11 post-mortemCertificate, it remains to be stated that originally there was aquarrel, following the same the occurrence had taken place. He wasunder treatment and he died after treatment due to septicaemea andrenal failure. It would clearly indicate that the provisions ofSection 300 of the Indian Penal Code would not be attracted. It isnot even an case that the Court would find him guilty under Section304 Part (i) or Part (ii) of the Indian Penal code, in which casefinding him guilty under Section 326 of the Indian Penal code,awarding 5 years Rigorous Imprisonment would meet the ends of justice.14. Accordingly, the sentence of imprisonment imposed onthe appellant under Section 307 of the Indian Penal code is modifiedto Section 324 of the Indian penal Code for which he was awarded 3years Rigorous Imprisonment and this Court, while setting aside thesecond charge of murder, found him guilty under Section 326 of theIndian Penal Code, for which 5 years Rigorous Imprisonment wasimposed. Both the sentences have to run concurrently. With thismodification, the appeal is dismissed. Sd/-Asst. Registrar//true copy//Sub Asst.Registrarssa. https://hcservices.ecourts.gov.in/hcservices/ To1. The XVI Metropolitan Magistrate, Chennai.2. -do- Thro The Chief Metropolitan Magistrate, Egmore, Chennai. 3. The Principal Sessions Court, Chennai.4. The Superintendent, Central Prison, Puzhal, Chennai.5. The District Collector, Chennai. 6. The Director General of Police, Mylapore, Madras – 4.7. The Inspector of Police, N-1, Rayapuram Police Station, Chennai.8. The Public Prosecutor, High Court, Madras. Crl. A. No.735 of 2009GV {CO}TP/22.3.2010.