Kaliyaperumal v. State rep. by Inspector of Police Town Police Station Karaikal

BAIL SLIPThe Appellant herein namely Kaliyaperumal in Crl.A.No.326/2001(Accused in S.C.No.27/99 on the file of the Court of AdditionalSessions Judge, Pondicherry) was directed to be released on bail asper order of this Court dt. 15.6.2001 and made in Crl.M.P.No.2229/2001.IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 22.09.2005CORAMTHE HONOURABLE MR. JUSTICE N.DHINAKARANDTHE HONOURABLE MR. JUSTICE M.CHOCKALINGAMCRL. APPEAL NO. 326 OF 2001 Kaliyaperumal.. Appellant- Vs -State rep. by Inspector of PoliceTown Police StationKaraikal... Respondent Appeal preferred against the conviction and sentence passed bythe learned Addl. Sessions Judge, Pondicherry at Karaikal made inS.C. No. 27 of 1999 dated 20.7.1999 as stated therein. For Appellant: Ms. R.T.ShyamalaFor Respondent: Mr. A.P.Suriya Prakash, APP (Pondy)JUDGMENT(JUDGMENT OF THE COURT WAS DELIVERED BY M.CHOCKALINGAM, J.)The sole accused in a case of murder in S.C. No.27/99 on thefile of Addl. Sessions Judge, Pondicherry at Karaikal, on beingfound guilty and awarded life imprisonment, has brought forth thisappeal.

The short facts necessary for the disposal of this appealcould be stated thus :-P.W.1 is a neighbour of the appellant. P.W.10 is the son ofthe appellant; P.W.12 is the daughter-in-law of the appellant andP.W.15 is the daughter of the appellant. They were all living in Door No.40, 3rd Cross, Seniar Kulathu Street, Valatheru, Karaikal. The house property was mortgaged and it could not be redeemed for a https://hcservices.ecourts.gov.in/hcservices/ long time over which there was often quarrel in the family. On thedate of occurrence, namely, on 18.6.98, at about 9.00 p.m., theappellant after finishing his work came back and was sitting in achair outside the house, while P.W.s 10, 12, 15 and the deceasedwere present in the house. When the deceased was inside the house, the appellant, who was sitting outside, shouted as to whether thedeceased was going to redeem the property or not. He also abusedin filthy language. The deceased, who is the son of theappellant, came out and abused the appellant in filthy language andhe also slapped his father. Immediately, P.W.s 2, 10 and others, who were present took him inside and pacified him and advised himnot to quarrel. P.W.10 even went to the extent of committingsuicide by pouring kerosene saying that if such a quarrel is to goon, it is better to die. He was prevented and was pacified. Thereafter, the deceased came out of the house and suddenly, theappellant, who was sitting outside, took out a chisel, M.O.7 andstabbed the deceased on the abdomen and the deceased immediatelyfell down. The appellant ran away from the place.

The deceased was taken to the hospital by the witnesses ina rickshaw where he was examined by the doctor, P.W.2 and whopronounced him dead and issued the accident register, Ex.P-2.P.W.1, thereafter, proceeded to the Karaikal Town police stationand gave a complaint, Ex.P-1, to P.W.13, the Sub-Inspector of Police on the strength of which a case came to be registered by thepolice in crime No.115/98 under Section 302 IPC. The express firstinformation report, Ex.P-17 was despatched to the court.

On receipt of a copy of the printed first informationreport, P.W.16, the Inspector of Karaikal Town police station, tookup investigation. He proceeded to the scene of occurrence andprepared an observation mahazar, Ex.P-8 and also drew a roughsketch, Ex.P-20. The scene of occurrence was caused to bephotographed through the photographer, P.W.9. Thereafter, theinvestigating officer conducted inquest over the dead body of thedeceased in the presence of witnesses and panchayatadars andprepared inquest report, Ex.P-10. After the inquest, he sent thedead body along with a requisition to the doctor for conductingautopsy.

On receipt of the requisition, P.W.4, Medical Officerattached to the Government Hospital, Karaikal, conducted autopsy onthe dead body of the deceased Kannan and found the followinginjuries :-"1) A stab injury (punctured incised type)measuring 3 cms x 1 cm spindel shaped, cavity deepseen situated over right para-umbilical region 14cms below right costal margin.2) A slash injury involving only superficial layersof skin seen situated obliquely on left para-umbilical region 10 cms x 0.5 cm x 0.5 cm.3) A scratch abrasion 4 cm x 0.5 cms seen overright anterior shoulder.4) A scratch abrasion 4 cm x 0.5 cm seen over right https://hcservices.ecourts.gov.in/hcservices/ anterior shoulder below injury No.3.5) Two scratch abrasions 1 x 0.5 cms seen overposterior aspect of right elbow.6) An abrasion 1 x 1 cm seen over right zygomaticarea of face.7) A superficial slash injury 2.5 cm x 0.5 cm x 0.5cm seen above injury No.1 on abdomen.8) An abrasion 3.5 cms x 1 cm seen on rightparamedian region of epigastric region of abdomen.9) An abrasion 2 cm x 0.5 cm seen over rightparamedian region 4 cm above umbilicus. "The doctor issued Ex.P-4, the post-mortem certificate opining thatthe deceased would appear to have died on account of Hypovolaemicshock as a result of intra-abdominal haemorrhage.

P.W.16, in the meantime, continuing with his investigation, arrested the appellant. The appellant gave a confessionalstatement, the admissible portion of which is marked as Ex.P-18,pursuant to which M.O.7 was recovered under a mahazar, Ex.P-19.The investigating officer gave a requisition to the court to sendall the material objects for analysis and the court on forwardingthe same received the report from the forensic department. Aftercompletion of the investigation, the investigating officer filedthe final report against the appellant. The case was committed tothe court of sessions by the Judicial Magistrate. After committal, the trial court framed the necessary charges and the appellant wastried.

In order to substantiate the charge framed against theappellant, the prosecution marched sixteen witnesses and relied ontwenty exhibits and seven material objects. On completion of theevidence on the side of the prosecution, the accused was questionedunder Section 313 Cr.P.C. on the incriminating circumstancesappearing in the evidence of the prosecution witnesses. Theappellant denied them as false. No defence witness was examined. The court, after hearing the arguments advanced by either side andon perusal of the recorded evidence, found the accused guilty asper the charge and awarded life imprisonment, which is the subjectmatter of challenge in this appeal before this Court.

Learned counsel appearing for the appellant inter alia madeonly two submissions. In the instant case, the witnesses examinedon the side of the prosecution, who according to the prosecutionare eye witnesses, are all closely related to the deceased andthere are discrepancies in their evidence and, hence, the trialcourt should have rejected their evidence outright. Apart fromthat, in the instant case, the appellant also has sustainedinjuries and he was also treated by a doctor who has given a woundcertificate in that regard, which would also clearly reveal thatthe aggressor in the instant case was only the deceased, who is theson of the appellant and not the appellant. Added further thelearned counsel that even if the act of the accused is said to beproved, then the act of the accused would not attract the penalprovisions of murder, but would fall under Exception (1) to Section https://hcservices.ecourts.gov.in/hcservices/ 300 IPC, since there was a quarrel and due to the suddenprovocation during the quarrel, the appellant stabbed the deceasedand there are materials available, which would also indicate thesame, which the trial court has failed to take note of and whichrequires consideration by this Court.

On the above contentions, this Court heard the learnedAddl. Public Prosecutor appearing for the State and also perusedthe recorded evidence, both oral and documentary.

The cause of death of the deceased Kannan standsestablished through the evidence of the doctor, P.W.4, whoconducted autopsy and who issued Ex.P-4, post-mortem certificate. It is very clear from the evidence of the doctor that the deceaseddied an account of Hypovolaemic shock as a result of intra-abdominal haemorrhage. The said fact was not disputed by theappellant either before the trial court or before this Court. Onthe medical evidence this Court holds that the deceased died onaccount of homicidal violence.

The question that arises for consideration is whether itwas the appellant, who committed the act. In the instant case, theprosecution has examined eye witnesses pointing that it was theappellant, who committed the crime. It is true that two of the eyewitnesses have turned hostile, but their evidence has been reliedon by the trial court and rightly too. There has been a graphicnarration of the entire incident commencing from the father comingto the house until he attacked his son, the deceased, with M.O.7,chisel. In the instant case, the deceased was immediately taken tothe hospital where he was examined and pronounced dead and the copyof the accident register is marked as Ex.P-2. Immediatelythereafter, the case was registered by the police within a shortspan of time. Apart from that, the evidence of the eye witnessesis not only natural, cogent and acceptable, but is also convincing. Hence, the trial court was perfectly correct in accepting theevidence of the witnesses and this Court finds no reason to take aview different to the one taken by the trial court. Hence, thefirst contention advanced by the learned counsel for the appellantcannot be accepted.

Insofar as the second contention of the learned counsel, as to the nature of the act of the accused, this Court has tonecessarily agree with the contention advanced by the learnedcounsel for the appellant. In the instant case, even as per theprosecution case there was a quarrel between the deceased and theappellant. The father, who is the appellant, was actually sittingoutside the house and shouting. It was the son, who is thedeceased, who went outside and slapped the appellant apart fromabusing in filthy language and the father, the appellant, takingthe chisel, M.O.7, stabbed the deceased. This would clearlyindicate that during the quarrel in which the deceased slapped theappellant and used filthy language, due to sudden provocation theappellant took out the chisel and stabbed the deceased. In theinstant case, it is clear that it was the deceased, who first https://hcservices.ecourts.gov.in/hcservices/ attacked the appellant, whereby the appellant got provoked and heattacked his son. Therefore, the above act of the appellant woulddefinitely fall within Exception (1) to Section 300 IPC and wouldnot fall within the ambit of murder and, therefore, the benefit hasgot to be given to the appellant. Hence, this Court is of theconsidered opinion that the act of the appellant would not fallwithin the ambit of murder, but would fall only within Exception(1) to Section 300 IPC. Hence, the conviction of the appellantunder Section 302 IPC is set aside and instead this Court finds himguilty under Section 304 (1) IPC.

Now coming to the question of punishment awarded, thetrial court has imposed imprisonment for life as the punishment forthe offence under Section 302 IPC. Since the conviction of theappellant under Section 302 IPC has been set aside, the consequentsentence imposed on the appellant by the trial court has also gotto be set aside and accordingly it is set aside. It is brought tothe notice of this Court that the appellant, who is the father ofthe deceased, is aged seventy-one years. It is true that at thetime of the act when the appellant attacked his son with M.O.7, itwould have been well within his knowledge that his act would besufficient to cause death. But this Court taking a lenient viewand on considering the age of the deceased, sentences the appellantto undergo rigourous imprisonment for a period of five years, whichwould be suffice to meet the ends of justice.

In result, the conviction and sentence imposed on theappellant by the trial court under Section 302 IPC is set aside andinstead the appellant is found guilty under Section 304 (1) IPC forwhich he is directed to suffer rigourous imprisonment for a periodof five years. With the above modification in conviction andsentence, this criminal appeal is dismissed. It is reported thatthe appellant is on bail. The learned Sessions Judge is directedto take steps to secure the presence of the appellant and commithim to prison to serve the remaining period of sentence imposedupon him. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarGLN https://hcservices.ecourts.gov.in/hcservices/ To1) The Addl. Sessions Judge, Pondicherry at Karaikal.2)-Do- Thro' The Principal Sessions Judge, Pondicherry.3)The Judicial Magistrate, Karaikal4)-do- Through the Chief Judicial Magistrate, Karaikal at Pondicherry5) The Chief Secretary, Govt. of Pondicherry, Pondicherry.6) The Inspector General of Police, Pondicherry.7) The Public Prosecutor of Pondicherry, High Court, Madras.8) The Superintendent of Central Prison, Pondicherry.9) The Inspector of Police, Town Police Station, Karaikal.1 cc to Ms. R.T.Shyamala, Advocate, SR. 401291 cc to Office of the Govt. Pleader, cum Public Prosecutor, Pondicherry, High Court Madras. SR. No. 40003 CRL. A. NO. 326 OF 2001TEJ (CO)kk 28/9