Raja @ Kattu Raja v. State

Crl.A.No.505/2003The Appellant/Accused viz.Raja @ Kattu Raja was directed to bereleased on bail as per the order of this Court dated 28.4.2003 andmade in Crl.M.P.No.4166/2003 in Crl.A.No.505/2003. IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.07.2012CORAM:THE HONOURABLE MS. JUSTICE R. MALACriminal Appeal No.505 of 2003Raja @ Kattu Raja .. Appellant/Accusedv. State rep. by Inspector of PoliceGobichettipalayam Police stationErode District. .. Respondent/Complainant(Cr.No.37/2002) Prayer: Criminal Appeal filed under Section 374 of Cr.P.C., againstthe judgment of conviction and sentence dated 24.02.2003, made inS.C.No.179 of 2002 on the file of the Additional Sessions Court(Fast Track Court No.2), Gobichettipalayam. For Appellant : Mr.R.Karthikeyan for Mr.N.Mohideen Basha Mr.V.Rajamohan For Respondent : Mr.C.Emalias Government Advocate (crl.side) J U D G M E N TThe criminal appeal arises out of the judgment ofconviction and sentence dated 24.02.2003, made in S.C.No.179 of 2002on the file of the Additional Sessions Court (Fast Track CourtNo.2), Gobichettipalayam, whereby the accused was convicted for theoffence under Section 304(i) IPC and sentenced to undergo 7 yearsrigorous imprisonment and imposed a fine of Rs.1,000/- in default inpayment to undergo six months simple imprisonment and he wasconvicted for the offence under Section 324 IPC and sentenced toundergo three months rigorous imprisonment and imposed a fine of https://hcservices.ecourts.gov.in/hcservices/ Rs.500/- in default in payment to undergo one month simpleimprisonment. 2.The respondent has filed a charge sheet against theaccused for the offence under Sections 324, 302 and 506(ii) IPC,stating that on 12.01.2002 at 8.30 p.m., when the deceased Anbalaganand P.W.1 to P.W.4 were gone to see the Pariyur Car festival at Gobibus stand, near Saravana theatre, at the time, the accused, who wasriding his scooter with rash and negligent manner, dashed againstP.W.2/Saravanan and due to the same, there was an wordy altercationand thereafter, the accused took the knife and stabbed Saravanan onhis left hand and also stabbed the deceased on his left thigh, whocame to prevent Saravanan, died in the hospital and thereby, theaccused committed the aforesaid offences. 3.The case of the prosecution is as follows:(i) On 12.01.2002, at 8.30 p.m., the deceased Anbalaganand P.W.1/Vadivel, P.W.2/Saravanan, P.W.3/Saravana Kumar,P.W.4/Muthukumar were gone to see Pariyur car festival. Since theprocession would have reached the place at 11.00 p.m., they werechatting near Saravana theatre in Pariyur junction at Gobi busstand. At the time, the accused/appellant was driving hisscooter/M.O.1 with rash and negligent manner and hit againstP.W.2/Murugan @ Saravanan. Therefore, P.W.1 and other witnessesabused the accused. When P.W.4/Muthukumar attempted to hold theshoulder of the accused, the accused slapped him. At the time, P.W.2questioned the accused as to how he dashed against him and alsoassaulted his friend, so the accused took M.O.2/knife and stabbedP.W.2 on his left hand. While the deceased Anbalagan was trying toprevent the same, the accused stabbed on his left thigh and he alsothreatened the other witnesses that he will kill them if they attackhim. Then, he threw M.O.2/knife and fled away from the place.Immediately, P.W.1 and five others took Anbalagan to Gobi GovernmentHospital. P.W.3/Saravana Kumar went to Anbalagan's house to informthe same. Since the deceased was sustained stab injury and hence,the Doctors would not give treatment, they informed the hospitalthat he was hit by motor cycle and sustained injury (i.e.) in RoadTraffic Accident. (ii) P.W.20/Dr.Ragunathan, who treated the deceased at9.20 p.m., gave Ex.P15 Accident Register, in which, it was statedthat the deceased was hit by a motor cycle at 8.30 p.m. on12.01.2002 near bus stand and he was sustained 2 X 2 X 2 inchlacerated injury on his left upper thigh. Since his condition wasvery critical, he died at 11.55 a.m. and the death intimation givento the police was marked as Ex.P14. P.W.5/Murugan, who is the fatherof the deceased, rushed to the hospital and at 12.00 a.m., it wasinformed by the hospital that his son was died.(iii)P.W.2/Saravanan went to hospital in the next day https://hcservices.ecourts.gov.in/hcservices/ morning after receiving information that Anbalagan was died and healso got treatment for the injury, which he was sustained at thetime of occurrence. P.W.20/Dr.Ragunathan, who treated him, gaveEx.P16 Accident Register Copy.(iv) On 13.01.2002, at 12.30 a.m., P.W.1 gave Ex.P1complaint before Gobi Police station. P.W.23/Subramaniyam, Sub-Inspector of Police, received Ex.P1 compliant and registered a casein Crime No.37 of 2002 under Section 302 IPC. He prepared Ex.P25printed F.I.R. Then he seized M.O.3/Black jeans and M.O.4/Bluecoloured checked shirt from P.W.1 through Form 95 and the same wasmarked as Ex.P26. (v) P.W.24/A.R.Velu, Inspector of Police, who receivedF.I.R. from P.W.23 at 1.45 a.m., on 13.01.2002, took up the matterfor investigation. He went to the place of occurrence and preparedobservation mahazar Ex.P2 and drew rough sketch Ex.P27. He tooksteps to take photographs through P.W.16/Prabakaran and thephotographs and negatives were marked as M.O.6 and M.O.7. He seizedM.O.2/knife from the place of occurrence in the presence of oneThirumoorthy and Davamani. He went to Gobi Government Hospital at6.00 a.m. and examined P.W.1 to P.W.5 and recorded their statements.Then he conducted inquest in the presence of Panchayatars and theinquest report was marked as Ex.P28. P.W.24 examined the witnessesand recorded their statements. He seized M.O.5/blood stained browncoloured shirt from P.W.2 under Form 95 at 8.30 p.m. After inquest,the body of the deceased Anbalagan has been sent for post-mortemthrough Police namely, Rajagopal/P.W.18. (vi) P.W.21/Dr.Vaithialingam, who received Ex.P17requisition from P.W.18, conducted autopsy and gave Ex.P19 Post-mortem report. He opined that the deceased would appear to have diedof Hemorrhage and shock due to injury to Femoral Artery. Afterautopsy, P.W.18 seized M.O.8 to M.O.11 viz., blood stained blackand white shirt, M.O.9/blood stained vests, M.O.10/blue colouredunderwear and M.O.11/Black coloured pant belt and handed over toP.W.24 under Special Report Ex.P9. Thereafter, the body of thedeceased was handed over to the relatives of the deceased. (vii) On 15.01.2002, P.W.24 arrested the accused in frontof Saravana theatre in the presence of witnesses Thangavel andSubburathinam. The accused himself gave confession and the same hasbeen recorded in the presence of the aforesaid witnesses. Theadmitted portion was marked as Ex.P4. M.O.1/Scooter, which wasriding by the accused at the time of occurrence was seized underEx.P3. Then he sent viscera and material objects for chemicalanalysis and the Chemical analysis report was marked as Ex.P22 andBlood test reports were marked as Exs.P23 and P24. He also gaverequisition to conduct Identification parade to learned JudicialMagistrate No.II, Gobichettipalayam and the same was marked asEx.P11. (viii) On the basis of Ex.P11, P.W.19/Ramachandran,learned Special Judicial Magistrate, sent Ex.P12 letter to the https://hcservices.ecourts.gov.in/hcservices/ Superintendent of Central Jail, Coimbatore and conductedIdentification parade on 31.01.2002 and the Identificationproceedings were marked as Ex.P13. (ix) P.W.14/Murugesan, who was working as an employeeunder maintenance of street lights in the Gobi Municipality,received a letter on 7.2.2002 from Gobi Municipality to answer as towhether street lights near Saravana theatre were functioning ingood condition and he said that there was no power cut on the dateof occurrence and the lights were in good condition. Aftercompleting investigation, P.W.24 filed a charge sheet against theaccused for the offences under Sections 324, 302 and 506(ii) IPC.4.The trial Court after following the procedure framednecessary charges against the accused. Since the accused pleaded notguilty, the trial Court examined P.W.1 to P.W.24 and marked Exs.P1to P32 and M.O.1 to M.O.11. The trial Court placed the incriminatingevidence before the accused and the accused denied the same in toto.On his side, Exs.D1 to D3 were marked. After considering the oraland documentary evidence, the trial Court convicted the accused forthe offence under Section 304(i) IPC for causing death to thedeceased and convicted for the offence under Section 324 IPC forcausing injury to P.W.2 and sentenced him as stated above. 5.Challenging the conviction and sentence,Mr.R.Karthikeyan, learned counsel for the appellant submitted thatidentity of the accused has not been proved and M.O.2/knife was notbelonging to the accused. Further, there is a contradiction betweenthe medical and ocular evidence. In the Accident Register copy, itwas stated that the deceased sustained injury by road trafficaccident. After the death of the deceased only, it was stated thathe was stabbed by the accused, but his identification was not given.It is further submitted that there was no intention on the part ofthe accused to commit murder on the deceased. If at all this Courtwill agree with his arguments, the accused may be convicted for theoffence under Section 304(ii) IPC. The sentence imposed on theaccused is also very high and the quantum of sentence may bereduced. Hence, he prayed for allowing of this appeal. 6.Resisting the same, Mr.C.Emalias, learned GovernmentAdvocate (Crl. Side) submitted that even though accused was chargesheeted for the offences under Sections 302, 324 and 506(ii) IPC, hewas convicted only for the offence under Sections 324 and 304(i)IPC. The trial Court considering every aspects came to the correctconclusion. Hence, he prayed for dismissal of the appeal. 7.Considered the rival submissions made on both sides andthe materials available on record.8. On perusal of records, it is seen that P.W.1 to P.W.4, https://hcservices.ecourts.gov.in/hcservices/ who are friends of the deceased, are independent eye-witnesses andP.W.2/Saravanan was also an injured eye witness. They are the onlyavailable witnesses. P.W.5/Murugesan, who is father of the deceasedAnbalagan, is not an eye witness. P.W.6/Venkatesan andP.W.7/Murugesan, who are running and working in Barber shop, inSaravana Theatre road, P.W.8/Devan @ Devaraj, who is running pettyshop, P.W.9/Saravanan, who is a salesman in Raja wines shop,P.W.10/Ganesh @ Nagalingam, who is a Bunk manager, were examined andthey turned hostile, during trial. 9.On 12.01.2002, at 8.30 p.m., when P.W.1 to P.W.4 and thedeceased Anbalagan, who gone to visit Pariyur muthu pallakku, werechatting in front of Saravana Theatre near Gobi Bus stand, at thetime, the accused, who was riding his scooter/M.O.1 came in rash andnegligent manner, dashed against P.W.2 and due to wordy altercation,the accused assaulted P.W.2 with M.O.2/knife on his left hand. Atthe time, the deceased who was trying to prevent the same, wasstabbed by the accused on his left thigh, which leads to death. 10.At this juncture, it is appropriate to consider Ex.P19post-mortem certificate, in which, P.W.21/Dr.Vaithiyalingammentioned the following external injury sustained by the deceased."External Injury- A sutured wound 5 cm in length-Leftupper thigh, oblique and vertically 6 cm below the midpoint of the inguinal ligament left side; sharp cutedged oval shaped injury 5 cm X 1.5 cm X depth 7 cmpassing upwards and medially below the inguinal regionof left upper thigh; cut injury left Femoral Arterytear 3 cm X 0.5 cm X 0.5 cm depth, 3 cm below the midpoint of the inguinal ligament; Left clotted blood 200gms in the muscle plane and lacerated injury. "It reveals that the stab injury pierced Femoral Artery of thedeceased, so the blood was clotted on the tissue, which leads todeath. P.W.21 opined that the deceased would appear to have died ofhemorrhage and shock due to injury to Femoral Artery. So the deathof the deceased is due to hemorrhage and shock. 11.Now this Court has to decide that who had caused injuryto the deceased? It is pertinent to note that on the date ofoccurrence, there was no power cut and street lights were availableand to prove the same, P.W.14/Employee in maintaining Street lightin Gobi Municipality was examined. Admittedly, on 12.01.2002, therewas Pariyur car festival and no doubt, the lights were mostlyavailable. Further, in Ex.P1 complaint, the name of theappellant/accused was not mentioned. Due to wordy altercationbetween the accused and the deceased and his friends, P.W.2sustained injury and deceased sustained fatal injury. Appellant in https://hcservices.ecourts.gov.in/hcservices/ his statement stated that M.O.1/scooter was not belonging to him.Even though P.W.13/Senthilkumar deposed that R.C. Book in respect ofM.O.1/scooter bearing Registration No.TN37H8822, was pledged andreceived amount by one Rajkumar, but his evidence can not givehelping hands to the prosecution case. In his cross-examination,P.W.13 fairly conceded that one Rajkumar received Rs.5,000/- bypledging his scooter and gave interest 1 ½ years, thereafter, hedied and the death certificate of Rajkumar was marked as Ex.D2 andreceipt for receiving the above said amount was marked as Ex.D1. Onperusal of Ex.D1, scooter number has been mentioned as TN37H8822 LMLVespa, which was seized under Ex.P5/seizure mahazar and the R.C.Book was marked as Ex.P6. But in Ex.P6, the name of the owner wasmentioned as A.Ummarm, s/o Abdul Rahman. It is true, in thecomplaint, the Registration number of the scooter was not mentioned.12.Now it is appropriate to consider the Identificationparade conducted by P.W.19/Ramachandran, learned Special JudicialMagistrate. P.W.19 after following the procedure, conductedidentification parade and the accused was identified by thewitnesses. When the accused was questioned by the Magistrate, at thetime, he stated that when he was produced before the judicialcustody, he was shown by police people to the witnesses. But I donot find any reason for discarding Ex.P13 proceedings of theidentification parade, because there is no previous enmity betweenthe accused and the deceased and his friends and hence, there is nonecessity for them to rope the accused in this case. It is to benoted that the occurrence took place on 12.01.2002, at 8.30 p.m.,before that, the accused and the deceased were not known. In suchcircumstances, I am of the view, the argument advanced by thelearned counsel for the accused/appellant that identity of theaccused is doubtful, does not merit acceptance. In Ex.P1 complaint,P.W.1 stated the age of the accused and they can also be able toidentify the accused. So there is no reason for discarding theevidence of P.W.1 to P.W.4, which are trustworthy and reliable. 13.Now this Court has to consider the argument advanced bythe learned counsel for the appellant that in Ex.D3/case sheet ofthe deceased, it was mentioned that he sustained injury on Roadtraffic accident, but later, it was ended in murder case. Whileperusing the evidence of P.W.1, he stated that as soon as thedeceased sustained injury, they took him to nearby hospital, but theNurse in the hospital refused to admit him, since he was sustainedstab injury by knife. Hence they took him to Government Hospital,Gobi and stated that he sustained injury on the road trafficaccident. They got feared that if they disclosed the fact that hewas sustained stab injury, they would not have admitted him. 14.At this juncture, it is appropriate to consider theevidence of P.W.20/Dr.Ragunathan. In his cross-examination, he https://hcservices.ecourts.gov.in/hcservices/ stated that the injury sustained by the deceased was caused byknife/M.O.2 and he had not sustained that injury in road trafficaccident. In his cross-examination, he stated as follows:" .. .. bghJthf thfd tpgj;J vd;why; ,lj;ij bghWj;J gyfha';fs; Vw;gl tha;g;g[z;L/ Mdhy; mtUf;F xU fhak; ,Ue;jJ/thfd tpgj;J vd;why; mtUf;F Vw;gl;l fhak; nghy; me;j xU ,lj;jpy; kl;Lk; fhak; Vw;gl tha;g;gpy;iy/ m/rh/bgh/2 fj;jpahy;nkw;go fhak; Vw;gl tha;g;g[z;L/ // // @So no reliance can be placed on Ex.D3 and the submission made by thelearned counsel for the appellant that the deceased sustained injuryon road traffic accident. 15.As already stated that there is no reason fordiscarding the evidence of P.W.1 to P.W.4. There was no necessityfor them to give false evidence against the accused, since there wasno previous enmity between both of them. In such circumstances, I amof the view, the appellant/accused alone caused stab injury usingM.O.2/knife. 16.It is pertinent to note that the material objects weresent for chemical analysis and the reports were received underExs.P22 to P24. M.O.2/knife contains human blood and the result ofgrouping test is inconclusive and the blood in the blood stainedshirt is 'O' group, which shows that the appellant alone causedinjury to P.W.2 and that has been spoken by P.W.20/Dr.Ragunathan andAccident register copy of P.W.2 was marked as Ex.P16. Since theaccused caused simple injury to P.W.2 with deadly weapon, he wasconvicted under Section 324 IPC by the trial Court. In my opinion,it does not warrant any interference. Admittedly, theappellant/accused has no intention to commit murder on the deceased.He was stabbed him on his left thigh, but the accused did not knowthat causing injury on left thigh cut femoral artery, which leads todeath. 17.The accused/appellant was convicted for the offenceunder Section 304(i) IPC for causing fatal injury to the deceased.It is appropriate to incorporate the ingredients of Section 304(i)IPC, which reads as follows:(1)Death of a human being(2)Death was caused by accused by an act. (a) With intention to cause death unless anyof 5 exceptions of Section 300. (b) With intention of causing such bodilyinjury as is likely to cause death. https://hcservices.ecourts.gov.in/hcservices/ (c ) With knowledge that he is likely tocause death. 18.While perusing Ex.P1 complaint, it was stated asfollows:" .. .. mg;nghJ ,ut[ Rkhh; 8 1-2 kzpf;F mt;tHpahf !;Tl;lhpy; rutzh jpnal;lh; nuhl;oy; nghf te;j xU egh; rutzd;kPJ nkhjptpl;lhh;/ eh';fs; !;Tl;lh; fhuiu xG';fh ghh;j;JXl;lf;Tlhjh vd;W jpl;ondhk;/ mjw;Fs; Kj;JFkhh; nkw;go !;Tl;lh; fhuhpd; njhis gpoj;jhh;/ !;Tl;lh; fhuh; clnd Vz;lhvd; kPJ if itf;Fkstpw;F bghpa Msh vd nfl;L Kj;Jf;Fkhiufd;dj;jpy; miwe;Jtpl;lhd;/ ,ijg; ghh;;j;J rutzd; vd;kPJ !;Tl;liu tpl;lJkpy;yhky; mof;fpwhah vd brhy;yp gf;fj;jpy;nghf !;Tl;lh; fhuh; jpOh; vd jd;dplk; kiwj;J itj;jpUe;jNhpfj;jpia vLj;Jk; rutzid Fj;jpdhh;/ ,ijg; ghh;j;jmd;gHfd; nla; Fj;jhnj vd brhy;yp gf;fj;jpy; nghf md;gHfdpd;,lJ bjhilapy; X';fp xU Fj;J Fj;jp tpl;lhd;/ // // @It shows that the accused has no intention to cause injury to thedeceased that too he is having knowledge that he is likely to causedeath using knife/M.O.2. In such circumstances, I am of the view,conviction under Section 304(i) IPC passed by the trial Court is notsustainable, if at all he is convicted under Section 326 IPC. As perSection 326 IPC, the grievous hurt caused by deadly weapon leads todeath. Hence, I am of the view, the appellant is convicted for theoffence under Section 326 IPC instead of Section 304(i) IPC, sincethe occurrence had been taken place on sudden provocation.Therefore, the appellant is convicted for the offence under Section326 IPC and sentenced to undergo six months rigorous imprisonmentand the fine has been increased from Rs.15,000/- in default inpayment, to undergo one month simple imprisonment. Out ofRs.15,000/-, Rs.12,000/- has to be paid as compensation to P.W.5,father of the victim. 19.In fine,(i) The Criminal Appeal is partly allowed.(ii) The conviction and sentence passed by the trial Court for the offence under Section 324 IPC is hereby confirmed.(iii) The conviction and sentence passed by the trial Court for the offence under Section 304(i) IPC is hereby set aside.(iv) The appellant/accused is convicted for the offence under Section 326 IPC. https://hcservices.ecourts.gov.in/hcservices/ (v) The appellant/accused is sentenced to undergo six months rigorous imprisonment and imposed a fine of Rs.15,000/-, in default in payment, to undergo one month Simple Imprisonment.(vi) Out of Rs.15,000/-, Rs.12,000/- is ordered to be paid as compensation to P.W.5, who is the father of the deceased. (vii) Bail bond, if executed by the appellant/accused shall stand cancelled.(viii) The trial Court is directed to take steps to secure the custody of the accused to undergo the remaining period of sentence. Sd/ Asst.Registrar /true copy/ Sub Asst.RegistrarkjTo1.The Additional Sessions Court (Fast Track Court No.2) Gobichettipalayam. 2.-do- Thro' The Principal Sessions Judge,Erode.3.Inspector of Police Gobichettipalayam Police station Erode District. 4.The Public Prosecutor High Court, Madras.5.The Record Keeper Criminal Section, High Court, Madras.6.The Judicial Magistrate No.I,Gobichettipalayam.7.-do- Thro' The Chief Judicial Magistrate,Erode. https://hcservices.ecourts.gov.in/hcservices/

8.The Superintendent,Central Prison,Coimbatore.9.The District Collector,Erode.10.The Director of Police,Mylapore, Chennai-14.+1cc to Mr.N.Mohideen, Advocate Sr 41496NG(CO)km/2.8.Criminal Appeal No.505 of 2003