Karnal @ Sanjeevimuthu v. The State

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.11.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.A.No.1646/2002Karnal @ SanjeevimuthuAppellant VsThe State by Inspector of Police St.Thomas Mount Police Station Chengalput East District(Cr.No.513 of 1991) RespondentPrayer:- This Criminal Appeal is filed against the judgement dated18.9.2001 passed in SC.No.190/1995 by the learned PrincipalSessions Judge, Chengalput, convicting and sentencing the appellantfor the offence under Section 304(1) of IPC to undergo 7 yearsRigorous Imprisonment.For Appellant :Mr.S.PanneerselvamFor Respondent :Mr.S.Senthil Murugan, GAORDER This Criminal Appeal is filed against the judgement dated18.9.2001 passed in SC.No.190/1995 by the learned PrincipalSessions Judge, Chengalput, convicting and sentencing the appellantfor the offence under Section 304(1) of IPC to undergo 7 yearsRigorous Imprisonment.2. The case of the Prosecution is as follows:-a. On 4.7.1991 at abut 9.00 p.m. at Manapakkam near SathyaNagar Tea Stall, the deceased Shanmugam used filthy languageagainst the mother of the Appellant/accused and the Appellant hadwarned him not to use abusive language against his mother. But,the deceased did not stop with that and had pushed aside theAppellant, due to which the Appellant got angry, took a casurinastick from PW.1's (K.Gangadharan Nair) Tea Shop and attacked thedeceased on his head, which resulted in head injuries to thedeceased and the deceased died on the spot itself. PW.2 Sekar isdoing welding business at Ramavaram. PW.3 Rajavelu is doing TurningWork at Ramavaram Main Road, Manapakkam. Pws.1 to 3 are known tothe deceased Shanmugam and witnessed the occurrence. PW.1 went tothe house of the deceased and informed his son-in-law Natesan aboutthe occurrence and came back to the place of occurrence and foundthat the deceased was dead and went to the St.Thomas PoliceStation and gave complaint Ex.P1. https://hcservices.ecourts.gov.in/hcservices/ b. On receipt of the complaint, PW.8 Head Constableattached to the said Police Station registered a case inCr.No.513/1991 on 4.7.1991 for the offence under Section 302 of IPCand prepared FIR Ex.P8. On receipt of Ex.P8, PW.9 the Inspector ofPolice attached to the said Police Station took up the case forinvestigation and went to the scene of occurrence and found thebody of the deceased Shanmugam at Mount Poonamallee road nearRamavaram Bus Stop and prepared rough plan Ex.P9 and observationmahazar Ex.P.2 on the same day the 22.30 hours in the presences ofPW.4 Annamalai and Babu and seized blood stained mud MO.2 andordinary mud MO.3 in the presence of the same witnesses undermahazar Ex.P3. From 23.00 hours to 1.00 hour on 5.1.1991, PW.9conducted inquest on the body of the deceased in the presence ofthe Panchayatdars and prepared inquest report Ex.P10 ad sent thebody of the deceased to Chromepet Government Hospital with arequisition through PW.6 Gopal Police Constable and also examinedthe witnesses PW.1 Gangadaran, PW.3 Rajavel, Marriyappan, Raja,Natesan, PW.8, PW.5, PW.6 Gopal, Manickam and another Raja, SelvamBaskar, Murthy, Srinivasan, Lakshmi, Parvathi and Gopal andrecorded their statements.c. PW.6 Gopal Head Constable handed over the body of thedeceased along with a requisition given by PW.9 to the ChromepetGovernment Hospital and he received MO.4 blood stained shirtremoved from the body of the deceased and handed over to PW.9.PW.7 Dr.Yuvarani attached to the said Hospital conducted postmortemon the body of the deceased and found the following injuries "1. A lacerated injury of 2" x 1/2" x bone depth onleft parietal region.2. A lacerated injury of 1"x1/2%x1 on left side of neckbelow the angle of the mansible.3. A contusion of 3"x2" on the right parietal region."and opined in Ex.P7 Postmortem certificate that the deceased dieddue to head injuries caused to him. After Post Mortem, PW.6 handedover the body of the deceased to his relatives. d. PW.9 received MO.4 under Form-95 in the presence of thewitnesses and sent a requisition for the chemical examination alongwith the letter of Judicial Magistrate Ex.P12 and Ex.P13 is thechemical examination report and Ex.P14 is the serology report. PW.9arrested the accused on 7.7.1991 at 5.00 p.m. at Porur Junction andrecorded his confession statement under Ex.P5 in the presence ofthe witnesses PW.3 and babu. On his confession statement, PW.9seized MO.1 blood stained stout stick from a bush near the place ofoccurrence under Ex.P3 mahazar. He also examined the Doctor whoconducted the autopsy and recorded her statement and aftercompleting investigation, he filed a final report under Section302 of IPC.3. The case was taken on file in SC.No.190/1995 on thefile of the learned Principal Sessions Judge, Chengalput andnecessary charges were framed. In order to substantiate the chargeslevelled against the accused, the prosecution examined as many as 9 https://hcservices.ecourts.gov.in/hcservices/ witnesses (PW.1 to PW.9} and also relied on Exs.P1 to P14 and 4Material Objects.4. On completion of the evidence on the side of theprosecution, the accused was questioned under Section 313 Cr.PC asto the incriminating circumstances found in the evidence ofprosecution witnesses and the accused denied the same as totallyfalse.5. The court below, after hearing the arguments advanced oneither side and looking into the materials available, found theaccused/appellant guilty and awarded punishments as referred toabove, which is challenged in this Criminal Appeal.6. This court heard the submissions of the learned counselon either side and also perused the material records placed.7. Mr.S.Panneerselvam, the learned counsel for theAppellant submitted that there is no previous motive between thedeceased and the Appellant and it had taken place due to suddenquarrel and it is the deceased who provoked the Appellant and he isthe aggressor. He would submit that even if the Prosecution'sversion is accepted in its totality, the case would fall only underSection 304(11) of IPC, as there is no premeditation or intentionto cause the death of the deceased.8. Mr.S.Senthil Murugan, the learned Government Advocate(Criminal Side) on the other hand supported the judgement of thecourt below.9. The occurrence had taken place on 4.7.1991 at abut 9.00p.m. at Manapakkam near Sathya Nagar Tea Stall. There is a clearand clinching evidence through the eye witnesses Pws.1 and 2 thatthe deceased Shanmugam was the aggressor who had used abusivelanguage against the mother of the Appellant, which was protestedby the Appellant and had warned him not to use abusive languageagainst his mother. But, the deceased did not stop with that andhad pushed aside the Appellant which provoked him and the Appellantin turn took a casurina stick from PW.1's Shop and attacked him onhis head which resulted in head injuries to the deceased. In fact,PW.2 stated that initially the deceased quarreled with PW.2 andwhen the Appellant intervened, he used abusive language and scoldedhim as "';nfhj;jh". Therefore, the evidence of the eye witnessesclearly established that the deceased was the aggressor and hisprovocative words made the Appellant to attack the deceased.10. Now, it has to be seen as to whether the act of theAppellant would come under Exception 4 to Section 300 of IPC. Toinvoke this Exception, four requisites must be satisfied, namely, (i)it was a sudden fight(ii)there was no premeditation(iii)the act was committed in a heat of passion and https://hcservices.ecourts.gov.in/hcservices/ (iv)the assailant had not taken any undue advantage oracted in a cruel manner.11. In the present case, all the above conditions exist.On examining the evidence in this case, it is found with reasonablecertainty that there had been a sudden fight and the Appellant hadcaused an unpremeditated assault on the deceased in the heat ofpassion upon a sudden quarrel. The Appellant had snatched up acasurina log from the PW.1's shop and caused the fatal blow. 12. For the application of the said Exception, it is notonly sufficient to show that there was a sudden quarrel and therewas no premeditation, but also it must further be shown that theoffender has not taken undue advantage or acted in cruel or unusualmanner. The expression "undue advantage" as used in the provisionsmeans "unfair advantage". These aspects have been highlighted inthe decisions of the Honourable Supreme Court rendered in the caseof Dhirajbhai Gorakhbhai Nayak Vs. State of Gujaraj [2003-5-Supreme-223], Prakash Chand Vs. State of HP [2004-11-SCC-381] andByvarragu Raju Vs. State of AP and another [2007-11-SCC-218].13. When the back ground facts are considered in the lightof the legal position elaborated above, the inevitable conclusionthat could be arrived at is that in the present case Exception 4 toSection 300 of IPC applies. That being so, the appropriateconviction would be under Section 304 Part II of IPC. Therefore,the conviction under Section 304(1) of IPC is altered into oneunder Section 304(II) of IPC and in my considered view, custody andsentence of three years would be appropriate and sufficient.14. In the result, this Criminal Appeal is partly allowed.The conviction and sentence imposed on the appellant by the courtbelow in SC.No.190/1995 is modified and the Appellant is convictedfor the offence under Section 304 (II) of IPC and sentenced toundergo three years Rigorous Imprisonment. 15. It is seen from the records that the Appellant was injail for a period of nearly 14 months and he had been enlarged onbail by this court. The bail granted to the Appellant is herebycancelled. The period of sentence already undergone by theAppellant is ordered to be given set off and the concerned SessionsJudge shall take steps to secure his presence and commit him toprison to undergo the remaining period of sentence. In all otheraspects, the impugned judgement shall stand unaltered. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Srcm To:1.The Principal Sessions Judge, Chengalput. 2.The Public Prosecutor, High Court, Madras.3.The Superintendent, Central Prison, Cuddalore.4.The Inspector of Police, St.Thomas Mount Police Station,Chengalpattu.Copy toThe Section Officer,Criminal Section, High Court, Madras.1 cc To Mr.S.Panneerselvam, Advocate, SR.64567.Crl.A.No.1646/2002 KA(CO)RVL 03.12.2009