G.Raj Kumar v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 01.07.2008CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR. JUSTICE K.N.BASHACRL.A.No.755 OF 2007G.Raj Kumar.. Appellant/Sole AccusedVsState by the Inspector of Police R-4 Pondy Bazaar Police Station.Chennai 600 083... Respondent/ComplainantAppeal filed under section 374[2] Cr.P.C., against the Judgmentand sentence passed by the learned Principal District and SessionsJudge, Chennai on 26.04.2007 in SC.No.487/2006.For Appellant:Mr.M.Muthusami, SCAmicus Curiae forMr.E.Martin JeyakumarFor Respondent:Mr.N.R.Elango,APPJUDGMENT[Judgment of the Court was delivered by K.N.BASHA, J.]The sole accused Raj Kumar has come forward with this appealchallenging the Judgment passed by the learned Principal District andSessions Judge, Chennai dated 26.04.2007 in S.C.No.487/2006convicting the appellant for the offence under section 302 IPC andsentencing him to life imprisonment and also imposing a fine ofRs.1,000/- carrying with the default sentence of three months simpleimprisonment.2.The brief facts of the case as projected by the prosecutionare as follows:-[a]P.W.1 is the father and P.W.2 is the brother of the deceasedRaj Kumar. The deceased was a B.Com., Graduate and he was not havingany regular employment. He was residing along with his https://hcservices.ecourts.gov.in/hcservices/ father, P.W.1 and brother, P.W.2 and other family members at FlatNo.20, Agalya Apartments, 2/55, Mambalam High Road, T.Nagar, Chennai-17. P.W.3 was the Security Guard of that apartment. The accused washaving a petty shop nearer to the apartment.[b]On the fateful day of occurrence, i.e., 16/05/2006 at 9.30p.m. P.W.1 was reading newspaper in his flat. P.W.3 came there andpressed the calling bell and on opening the door, P.W.3 informedP.W.1 that there was a quarrel between his son, the deceased and theaccused. Thereafter, P.W.1 along with another son, P.W.2 rushed tothe scene from the upstairs flat. At that time, they found theaccused shouting at the deceased stating that he was in due ofRs.2,000/- and further the deceased has taken the groundnut sweetbottle. By saying so, the accused immediately stabbed the deceasedwith M.O.1-knife on his left side of the head, shoulder, left handand chest. P.W.1 tried to prevent the accused from stabbing thedeceased. But the accused ran away from the scene. The deceasedfell down with bleeding injuries. P.W.1 took the injured deceased inan auto to Apollo Hospital along with P.W.2.[c]P.W.7, the doctor attached to Apollo Hospital, examined theinjured on 14.05.2006 at 10.00 p.m. brought by P.Ws.1 and 2. Onexamination, she found the deceased was already dead and declared thedeath at 10.30 p.m. Ex.P.4 is the Accident Register and Ex.P.5 isthe Death Certificate.[d]Thereafter P.W.1 went to the respondent Police Station andgave the report Ex.P.1 to P.W.14 the Inspector of Police at 11.30p.m. on 14.05.2006. P.W.14 registered the case in Crime No.357/2006for the offence under section 302 IPC. Ex.P.12 is the Express FirstInformation Report [FIR].[e]P.W.14 took up investigation and went to the scene ofoccurrence and prepared Ex.P.2-Observation Mahazar and Ex.P.13-roughsketch. He recovered M.O.6-groundnut sweet bottle from the sceneunder Ex.P.3. Thereafter, P.W.14 went to the hospital and heldinquest on the dead body of the deceased. Ex.P.14 is the InquestReport. He sent the body for postmortem through the constable to theGovernment Hospital, Royapettah.[f]Dr.Bhaskar, P.W.12, attached to the Government Hospital,Royapettah, conducted Post-Mortem on the dead body of the deceased on15.05.2006 at 2.40 p.m. He found the following injuries:-"ABRASIONS:-1]2x1.5cms over back of right shoulder.2]5.5x3.5cms over back of right elbow. https://hcservices.ecourts.gov.in/hcservices/ CUT INJURIES-3]Transverse cut injury 5.5x2.5x1 cm over leftside of head, 8 cms above to the front of left ear.4]Stab injury 3.5x1.5x2.5 cms over left sideof face over the region of cheek 1.5 cms below leftear.5]Laceration 3x2x1cm over left side of lowerjaw over the region of left angle of mandible.6]Stab injury 3.5x1.5cmsxcavity deep over leftside of chest transversely across the upper part ofanterior axillary fold directed obliquely inwards andbackwards.7]Transverse stab injury over left side ofchest at the level of 5th rib and 5th intercostal spacemeasuring 3.5x1.5cmsxcavity deep directed downwards,backwards and inwards.8]Cut injury 7x2 to 3x2.5cms over outer aspectof left elbow.9]Cut injury 2.5x1x1cm over outer aspect oflower third of left arm.10]Oblique, cut injury 5x1.5 to 2x1 cm overback of distal part of left hand exposing the 2ndmetacarpo phalangeal joint.11]Cut injury 7x2 to 3x1.5cms over back ofmiddle one third of left forearm.12]Superficial cut injury over front of rightshoulder 1.5x1x0.5 cms.13]Superficial incised wound over upper part ofright side of chest 5x0.5x0.5cms. The injuries are ante-mortem in nature."Ex.P.10 is the Postmortem Certificate wherein the doctor hasopined that the deceased would appear to have died of shock andhaemorrhage due to stab injuries sustained over left side of chestand left lung and the deceased would appear to have died 12 to 16hours prior to postmortem examination.[g]P.W.14, the Inspector of Police, in continuation of hisinvestigation arrested the accused at 4.30 a.m. on 15.5.2006. Inpursuance of the admissible portion of his confession under Ex.P.6, https://hcservices.ecourts.gov.in/hcservices/ P.W.14 recovered M.O.1-knife. He also recovered M.O.2-T-Shirt wornby the accused under Ex.P.7. After the postmortem, he examined thedoctor P.W.12 and recorded his statement. The accused was remandedto judicial custody. He also recovered M.O.5-Blue colour Jeans pant,M.O.3-T-Shirt and M.O.4-Underwear of the deceased under Form 95. Hesent the material objects for chemical examination through theMagistrate Court. He also received Exs.P.16 and 17-SerologistReports and Ex.P.10-Postmortem Certificate.[h]P.W.15, the Inspector of Police in continuation of theinvestigation, perused the Case Diary and the statements recorded byP.W.14 from the eyewitnesses and other documents and after completionof investigation filed the charge sheet against the accused on16.06.2006 for the offence under section 302 IPC. 3.The prosecution in order to prove its case, examined P.Ws.1to 15, filed Exs.P.1 to 17 and marked M.Os.1 to 6.4.When the accused was questioned under section 313 Cr.P.C.,in respect of the incriminating materials appearing against himthrough the evidence adduced by the prosecution, the accused deniedeach and every circumstances. He has come forward with the version oftotal denial. He has not chosen to examine any witness or mark anydocument on his side.5.Mr.M.Muthusami, learned Senior counsel appearing for theappellant vehemently contended that the prosecution has notestablished the guilt of the accused by adducing clear and acceptableevidence. It is contended that P.Ws.1 and 2 could not have witnessedthe occurrence as they were admittedly residing in the upstairs ofthe apartment and on information given by P.W.3, they came down andsaid to have witnessed the occurrence and P.W.3 has not supported theprosecution case and he turned hostile. It is submitted that P.Ws.1and 2 could not have been present at the time of actual occurrenceand as such, the prosecution has not come forward with the origin ofthe occurrence. It is further submitted that both P.Ws.1 and 2 arethe father and brother of the deceased and as such, they are theinterested witnesses and their evidence cannot be accepted withoutany independent corroboration. It is contended that the prosecutionalso failed to prove the motive against the accused to attack thedeceased as the witnesses, examined to speak about the motive, viz.,P.Ws.3 and 4, turned hostile. The learned Senior Counsel withoutprejudice to his earlier contention further submitted that even asper the admitted case of the prosecution the actual occurrence waspreceded by a wordy quarrel and as such, the entire occurrence tookplace due to the wordy quarrel without any premeditation andtherefore,the accused could not be held for the offence under section302 IPC. https://hcservices.ecourts.gov.in/hcservices/

6.Per contra Mr.N.R.Elango, learned Additional PublicProsecutor contended that the prosecution has proved its case byadducing clear and cogent evidence through the witnesses P.Ws.1 and2. It is submitted that merely because P.Ws.1 and 2 are closelyrelated to the deceased their evidence cannot be rejected as there isno infirmity or inconsistency in respect of the overt acts allegedagainst the accused. It is contended that the categorical version ofP.Ws.1 and 2, the eyewitnesses, has been corroborated by the medicalevidence through the doctor P.W.12 who has conducted the postmortemand found corresponding injuries on the deceased.7.We have given our careful and anxious consideration to therival contentions put forward by either side and also thoroughlyscrutinised the evidence available on record and perused the impugnedJudgment of conviction.8.The prosecution heavily placed reliance on the evidence ofthe eyewitnesses P.Ws.1 and 2. The fact remains that P.W.1 is thefather and P.W.2 is the brother of the deceased and their evidencecannot be brushed aside on that score itself. The only requirementis to consider their evidence with great care and caution. At theoutset, we are constrained to state that we are unable to see anyinfirmity or inconsistency between the evidence of P.Ws.1 and 2.P.Ws.1 and 2 have come forward with the clear and categorical versionimplicating the accused by attributing the overt acts against theaccused. It is seen that on information given by P.W.3, the Securityguard, P.Ws.1 and 2 came down from the upstairs and rushed to thescene and found the accused shouting at the deceased and thereafter,the accused stabbed the deceased on his left side head, shoulder,left hand and chest. It is pertinent to be noted that though P.W.3has turned hostile, his evidence is clear to the extent of thepresence of the accused at the scene and the quarrel between thedeceased and the accused. It is well settled that the evidence ofhostile witness cannot be rejected in toto and any portion, either infavour of the prosecution or in favour of the defence, can very wellbe placed reliance. It is to be noted that the particular portion ofthe version of P.W.3 to the effect of the deceased and the accusedquarreling with each other at the scene of occurrence is notshattered. The defence elicited in the cross examination is only tothe extent that after the arrival of P.Ws.1 and 2 to the scene, hehas not noted the presence of the accused. That answer of P.W.3 hadnot affected his earlier version in the chief examination to theeffect that there was a fight between the deceased and the accusedand thereafter, he went and informed P.Ws.1 and 2 who were in theupstairs and only on his information, P.Ws.1 and 2 rushed to thescene. 9.The evidence of P.Ws.1 and 2 is also corroborated by themedical evidence as the doctor, P.W.12, found corresponding injuriesas per the Postmortem Certificate, Ex.P.10. The Investigating https://hcservices.ecourts.gov.in/hcservices/ officer also recovered the blood-stained weapon, M.O.1-knife inpursuance of the admissible portion of the confession of the accusedunder Ex.P.6. It is pertinent to be noted that the T-shirt recoveredat the instance of the accused was also found to be blood-stained.Therefore, from the above said overwhelming materials it is crystalclear that the deceased died due to homicidal violence, that too, atthe hands of the accused.10.Now, we are left with the consideration of the nature ofoffence said to have been committed by the accused. 11.It is the case of the prosecution that the occurrence properpreceded by a wordy quarrel between the deceased and the accused.Both P.Ws.1 and 2 categorically stated that P.W.3 informed them thatthere was a quarrel between the deceased and the accused andthereafter, they rushed to the scene. P.W.1 has categorically statedthat while he came down to the scene of occurrence along with P.W.2the accused was shouting at the deceased stating that the deceasedwas in due of Rs.2,000/- and further he has taken the groundnut sweetbottle. P.W.2 has stated that even after reaching the scene theyfound the deceased and the accused were quarreling with each other.Therefore, it is crystal clear that the occurrence was preceded bythe continuous wordy quarrel between the accused and the deceased.The version of P.Ws.1 and 2 further discloses that the accused wasunder provocation due to the conduct of the deceased having dues ofRs.2,000/- to be paid to the accused and apart from this, thedeceased also took away the groundnut sweet bottle. 12.Further, the perusal of the entire disclosure statement ofthe accused recorded under section 27 of the Indian Evidence Actdiscloses that it was stated by the accused that the deceased wasalready having dues to be paid to the accused and inspite of thesame, at the time of occurrence the deceased came to the shop of theaccused and asked cigarette. But, the accused refused to give itwhich resulted in a wordy quarrel between them. It is further statedthat while the accused refused to give the cigarette the deceased hadtaken away the groundnut sweet bottle and thereafter, the accusedrushed to the apartment of the deceased and requested him to returnthe bottle. For that, the deceased refused which resulted in afurther wordy quarrel between them and only thereafter, the accusedis said to have stabbed the deceased resulting in his death.13.It is well settled by a catena of decisions that in theinterest of justice it is permissible to look into the confessionrecorded under Section 27 of the Indian Evidence Act from the accusedincluding the inadmissible portion in order to decide the nature ofoffence committed by the accused. This Court in Ganesan, In re (1973L.W.(Cri.) 42) has held as follows : https://hcservices.ecourts.gov.in/hcservices/ "3. The evidence shows that the appellant wentstraight to the police station at 9.15 a.m. and made astatement. In fact, that is the first information reportin the case. It contains the confession that theappellant inflected cuts on his wife. The learned SessionsJudge has excluded this portion and marked the rest of thestatement, as Ex.P.6. This, however, is not correct. InAghnoo Nagesia V. State of Bihar (AIR 1966 SC 119) it hasbeen observed :-“Now, a confession may consist of several partsand may reveal not only the actual commission ofthe crime but also the motive, the preparation,the opportunity, the provocation, the weaponsused, the intention, the concealment of the weaponand the subsequent conduct of the accused. If theconfession is tainted, the taint attaches to eachpart of it. It is not permissible in law toseparate one part and to admit it in evidence as anon-confessional statement. Each part disclosessome incriminating fact, i.e., some fact which byitself or along with other admitted or provedfacts suggests the inference that the accusedcommitted the crime, and though each part takensingly may not amount to a confession, each ofthem being part of a confessional statement,partakes of the character of a confession. If astatement contains an admission of an offence, notonly that admission but also every other admissionof an incriminating fact contained in thestatement is part of the confession”.…………… Little substance and content would be leftin Ss.24, 25 and 26, if proof of admissions ofincriminating facts in a confessional statement ispermitted.“Some of the decided cases took the view that if apart of the report is properly severable from thestrict confessional part, then the severable partcould be tendered in evidence. We think that theseparability test is misleading, and the entireconfessional statement is hit by S.25, and saveand except as provided by S.27, and save andexcept the formal part identifying the accused asthe maker of the report, no part of it could betendered in evidence.”The above decision has been followed in Khatri HemrajAmulkah V. State of Gujarat (AIR 1972 SC 929). According https://hcservices.ecourts.gov.in/hcservices/ to these decisions (of this Court and the Hon'ble ApexCourt), the only portion of the statement, which could beadmitted is the initial portion that he was making thestatement, which would not be of any use to theprosecution. But there is no bar to the appellant usingthe statement in his favour – see also Mottai Theva, In re[(1951) 2 M.L.J. 605]. We are referring to this at thisstage itself, because Ex.P.6 contains statementsfavourable to the appellant. It is a long statement, butfor our purpose, it is enough to give a brief summary. Ever since the marriage, the wife has been refusing tohave conjugal relationship with him. On the other hands,he had good reason to believe that she had been carryingon with P.W.6, her elder sister’s husband. On one night,Kamala and P.W.6 had gone out for the ostensible purposeof answering calls of nature, but evidently for havingsexual relationship. On the night previous to the day ofoccurrence also she refused him conjugal felicity. On themorning of the day of occurrence according to Ex.P.6, theappellant gave ten paise to P.W.1 and asked her to getonions. But his wife, Kamala said that she should not goout. He pointed out that P.W.1 was rendering service forall, and sundry in the village, but why not for them. Inreply to that, Kamala abused him, ……. (you silly-fellow,you run away) and buried a vegatable-cutter (….) on him. He warded it off with his left hand. It fell down. Butshe threw it on him again with force. He warded it offwith his right hand. This time it caused an injury on thepalmer aspect of his right little finger. It was about 8-30 a.m. He could not control his anger. He thereforetook cut the koduval and inflicted cuts on her. He cameout with a rope with the idea of hanging himself thatday. But on nearing Manonmani’s house he thought that itwas not proper to do so and threw it aside. There used tobe frequent quarrels between him and his wife, andAndalammal (P.W.2) and Devaraja Pillai (P.W.7) knew aboutit. So runs Ex.P-6.………Taking all these circumstances together we hold thatKamala threw the vegetable cutter on the appellantand caused injury on the right little finger. In ouropinion, this cannot afford a ground for self defenceunder Exception II because after throwing it at herhusband, Kamala, did not try to attack him with itand it was not justifiable for the appellant toinflict cuts on Kamala. But at the same time itseems to us that her act in throwing the vegetablecutter at him constituted grave and suddenprovocation which deprived him of the power of self- https://hcservices.ecourts.gov.in/hcservices/ control within the meaning of Exception I.” (Emphasissupplied)".14.This Court also by placing reliance on the decision citedsupra, has taken a similar view in the following decisions:-1.CHANDRAN, IN RE reported in 1988 L.W.[Crl.] 113;2.MUTHUSWAMY V. STATE reported in 1994 (1) L.W.(Crl.) 44 ; and3.VAIRAMUTHU V. STATE reported in 1996 (1) L.W.(Crl.) 9.15. In SANKARLAL ALIAS SANKARAYEE V. STATE reported in 1989 L.W.(Crl.) 468 a Division Bench of this Court has held that the term'self-control' in Section 300 I.P.C. is a subjective phenomenon andit can be inferred from the surrounding circumstances of a givencase. In order to find out whether the last act of provocation uponwhich the offender caused the death was sufficiently grave as todeprive him of the power of self-control, we have to take intoconsideration the previous act of provocation caused by the deceasedperson.16.The above said principle laid down by this Court in thedecision cited supra, is squarely applicable to the facts of theinstant case. As already pointed out, even as per the admittedprosecution version the actual occurrence was preceded by a wordyquarrel between the deceased and the accused. P.W.1 categoricallystated that on reaching the scene of occurrence the accused wasshouting at the deceased with anger to the effect that the deceasedwas already having dues to be paid to the accused. But, inspite ofthe same, he has also taken the groundnut sweet bottle. P.W.2 statedthat even after reaching the scene, both the deceased and the accusedwere quarreling with each other. The perusal of the disclosurestatement recorded under section 27 of the Indian Evidence Act asstated above makes it crystal clear that the deceased was having duesto be paid to the accused in respect of the purchase of cigarettesand even just prior to the time of occurrence the deceased asked forthe cigarette and the accused refused to give and thereafter, thedeceased has taken away the groundnut sweet bottle which provoked theaccused and the accused went to the apartment and requested thedeceased to return the bottle. But again the deceased indulged inquarreling with the accused and thereby added fuel to the fire andthe accused lost his power of self-control and stabbed the deceasedand caused injuries.17.It is also relevant to refer to the landmark decision inK.M.NANAVATI VS. STATE OF MAHARASHTRA reported in A.I.R. 1962 S.C.605, the Hon'ble Supreme Court of India has laid down the followingprinciples regarding the Exception 1 to Section 300 I.P.C.: https://hcservices.ecourts.gov.in/hcservices/ "1. The test of grave sudden provocation iswhether a reasonable man, belonging to the sameclass of society as the accused, placed in situationin which the accused was placed would be provoked asto lose his self-control.2. In India, words and gestures may also, undercertain circumstances, cause gave and suddenprovocation to an accused so as to bring his actwith the first Exception of Section 300 I.P.C.3. The mental background created by theprevious act of the victim may be taken intoconsideration in ascertaining whether the subsequentact caused grave and sudden provocation forcommitting the offence."In the above said decision, the Hon'ble Apex Court held that themental background created by the previous act of the victim may betaken into consideration in ascertaining whether the subsequent actcaused grave and sudden provocation to the accused to commit theoffence.18.As already pointed out even in the case on hand, thedeceased was already having dues to be paid to the accused and on thefateful date of occurrence, again the deceased asked for cigarettefor which the accused refused which resulted in a wordy quarrel andthereafter the deceased has taken away the groundnut sweet bottlefrom the shop of the accused and went to the apartment. The accusedbeing provoked, went to the apartment and again requested thedeceased to return the groundnut sweet bottle. But, inspite ofreturning the bottle, the deceased indulged in further wordy quarrelwith the accused and only such conduct of the deceased caused graveand sudden provocation to the accused and thereby he has stabbed thedeceased with knife. Therefore, we have no hesitation to hold thatin view of the above said facts, the accused is entitled to invokeexception [1] to section 300 IPC and as such he is liable to beconvicted only for the offence under section 304[Part I] IPC.19.Accordingly, the appeal is allowed in part and theconviction and sentence imposed on the appellant for the offenceunder section 302 IPC by the learned Principal District and SessionsJudge, Chennai dated 26.04.2007 in SC.No.487/2006 is hereby set asideand instead, the appellant is convicted under section 304[I] IPC andsentenced to undergo seven years rigorous imprisonment. 20.Mr.M.Muthusami, learned Senior Counsel was appointed asAmicus Curiae on 30.06.2008 as the learned counsel for the appellantwas not present. Today, the learned counsel on record assisted https://hcservices.ecourts.gov.in/hcservices/ Mr.M.Muthusami, learned Senior Counsel who was appointed as AmicusCuriae. We put our appreciation on record for the services renderedby Mr.M.Muthusami, learned Senior Counsel. We direct the High Court Legal Services Authority, Madras High Court, to pay a sum ofRs.5,000/- to Mr.M.Muthusami, learned Senior Counsel.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.apTo1.The Principal District and Sessions JudgeChennai.2.The Superintendent, Central Prison, Puzhal,Chennai - 663.The Inspector of Police R-4 Pondy Bazaar Police Station.Chennai 600 083.4. The Secretary,High Court, Legal Services Authority,Madras - 600 104.5.The District Collector, Chennai.6.The Director General of Police, Chennai.7.The Public ProsecutorHigh Court, Chennai.Crl.A.No.755/2007SSN(CO)SRA(15/07/2008)