THE HONOURABLE MR v. State rep byThe Inspector of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 16.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.777 of 2001Kathir @ Kathiravan..AppellantVs.State rep byThe Inspector of Police,Mayiladuthurai.(Cr.No.1452 of 1999) ..RespondentPrayer:- This appeal has been preferred against the judgment dated16.7.2001 made in S.C.No.102 of 2000 on the file of the AdditionalSessions Judge, Nagapattinam.For Appellant :Mr.T.R.Sivaram for Mr.K.V.SridharanFor Respondents :Mr.V.R.Balasubramanian Additional Public ProsecutorJUDGMENTThis appeal has been preferred against the judgment in S.C.No.102 of2000 on the file of the Additional Sessions Judge, Nagapattinam.2.The case of the prosecution in a nutshell is that on 1.12.1999 atabout 7.15 pm the accused with an intention to cause death of Ramesh, hadstabbed him on the chest with a knife causing instantaneous death. 3.The learned Judicial Magistrate after securing the accused by wayof summons furnished copies under Section 207 of Cr.P.C., and since thecase is triable by the Court of Sessions, the learned Judicial Magistratehas committed the case under Section 209 of Cr.P.C., to the Court ofSessions. On appearance before him, the learned trial Judge had framedcharges under Section 302 IPC and when questioned the accused pleaded notguilty. Before the trial Court P.W.1 to P.W.15 were examined, Ex.P.1 toEx.P.19 were exhibited and M.O.1 to M.O.15 were marked. 4.P.W.1 is the complainant, who is the sister's husband of thedeceased. According to P.W.1, the deceased was a taxi driver and on1.12.1999 at about 7.15 pm near the old bus stand at Mayiladuthurai https://hcservices.ecourts.gov.in/hcservices/ deceased Ramesh was conversing with his friends viz. Santhanam, Visu andSenthil and that he was also at that time talking to them and suddenly heheard a noise to the effect that the deceased Ramesh was stabbed by someone. Immediately he rushed to the place of occurrence where he saw Rameshwas lying on the ground with stab injury on his left chest. Immediatelyhe removed the injured Ramesh in an Ambassador Car bearing registrationNo.5950 to the government hospital at Mayiladuthruai along with P.W.2-Santhanam, P.W.3-Visu, Senthil and Sundaram and the Doctor at governmenthospital, Mayiladuthurai, on seeing Ramesh pronounced him brought dead.Immediately he informed the father of the deceased Ramesh and prepared thecomplaint Ex.P.1 and presented the same before the police. He had alsohanded over his blood stained dothi M.O.1 and M.O.2-blood stained shirt,which were seized under Ex.P.2, form-95.5.P.W.2 has not supported the case of the prosecution.6.P.W.3 is an eye witness to the occurrence. According to him, theoccurrence had taken place at about 7.00 pm near Mayiladuthurai old busstand about 1 ½ years back from the date on which he was deposing beforethe Court. At the time of occurrence, according to P.W.3, the deceasedRamesh was sitting in the car and at that time accused Kathiravan cametheir to whom the deceased Ramesh enquired where he was going. Theaccused answered Ramesh that he his going to Kollumankudi to see his wife.Ramesh immediately corrected Kathiravan by saying that he would not sayher as his wife but he should say as she is his concubine. Thereuponthere arose a quarrel between the accused and the deceased and thedeceased Ramesh caught hold of the accused Kathirvavan and gave a blow onthe left side of the face of the accused Kathiravan. Immediately theaccused Kathiravan took out a knife from his waist and stabbed on theleft chest of Ramesh. Immediately he(P.W.3) along with Sivamani, Kumar(P.W.6) and Sridhar chased the accused but the accused took to his heelswith the weapon used in the occurrence. When he returned to the place ofoccurrence, he was informed that Ramesh was taken to the hospital andlater he came to know that Ramesh breathed his last. P.W.3 has identifiedM.O.3 as the knife used by the accused at the time of the occurrence forstabbing the deceased.7.P.W.4 would corroborate the evidence of P.W.3 to the fact that atthe time of occurrence the accused had stabbed the deceased on his leftchest with a knife, which resulted in the victim death. He would furtherdepose that at the time of occurrence the street lights were burning atthe place of occurrence. 8.P.W.6 is also an another witness to the occurrence, who knows boththe deceased as well as the accused. He would corroborate the evidence ofP.W.1 and P.W.3 to the fact that on 1.12.1999 at about 7.30 pm, while hewas standing near the old bus stand at Mayiladuthurai and was talking toP.W.4-Sridhar and P.W.3-Visu and at that time the accused came in that wayand there was a quarrel between the accused and the deceased and in the https://hcservices.ecourts.gov.in/hcservices/ course of the transaction, the accused caught hold of the shirt of thedeceased and the deceased landed some blows on the face of the accused.Immediately the accused took a knife from his waist and stabbed Ramesh onthe left chest resulting the injured falling on the ground and the injuredRamesh was immediately taken to the hospital where he was pronounced dead.9.P.W.14 is the Sub-Inspector of Police, who had registered the FIRon the basis of the complaint-Ex.P.1 preferred by P.W.1 underMayiladuthuram Police Station Cr.No.1452 of 1999 under Section 302 IPC.Ex.P.17 is the FIR. He has also recovered the blood stained dothibelonging to P.W.1 and the blood stained full hand shirt under Form-95. Hehad sent the express FIR to the concerned officials including the JudicialMagistrate.10.P.W.15 is the Investigating Officer, who had visited the place ofoccurrence at about 9.15 pm on 1.12.1999 itself and prepared observationmahazar Ex.P.3 in the presence of P.W.7 and another witness. P.W.7 wouldadmit his signature in Ex.P.3 as Ex.P.4. From the place of occurrenceP.W.15 has recovered M.O.12- a pare of leather chappels, M.O.13(series)two white colour buttons, M.O.14-blood stained cement flooring, M.O.15-sample cement flooring under Ex.P.18-mahazar. He has examined thewitnesses and recorded their statement. He had conducted the inquest onthe corpse of Ramesh at about 11.00 pm on the same day in the presence ofthe witnesses. Ex.P.19 is the inquest report. Through P.W.13 the corpsewas sent by P.W.15 for post-mortem. P.W.13 has identified the corpse tothe doctor, who had conducted autopsy and after the autopsy he hadrecovered M.O.4-blood stained pant, M.O.5-belt, M.O.6-wrist watch, M.O.7-silver ring, M.O.8-blood stained shirt, M.O.9-blood stained banian,M.O.10-waist rob, M.O.11-blood stained towel from the corpse and handedthem over to P.W.15 under his special report Ex.P.15.11.P.W.12 is the doctor, who had conducted post-mortem on the corpseof Ramesh. He had seen the following injury on the corpse:-A spindleshaped gap stab injury on the left chest measuring 5 x 3 ½ x 9 cms. Thesaid injury was leading from left coller bone to the left lung regionthrough the left side of the second rib. The said injury had causedimpression on the left lung to an extent of 6 cm. 1,200 mls of blood wasfound clot in the said region. The second rib on the left side was foundfractured. The right side of the lung was found pale. The doctor hasopined that due to the injury the deceased had sustained in the heart andalso due to the hemorrhage, the victim had died about 12 to 15 hours priorto the autopsy. Ex.P.14 is the post-mortem report. The doctor hasopined that the injury No.1 would have caused with a weapon like M.O.3 andthat the said injury is sufficient in the ordinary course of time to causedeath. 12.The investigating officer P.W.15 had arrested the accused on4.12.1999 at about 10.30 am near Ananthandavarpuram railway gate and hasrecorded the voluntary confession statement of the accused in the presence https://hcservices.ecourts.gov.in/hcservices/ of P.W.8-Saravanan and also another witness by name Maheswaran. Theadmissible portion of the confession statement of the accused is Ex.P.5.On the basis of the confession statement, the accused had taken him andthe other witnesses to Vaitheeswaran Kovil railway station and from therebelow a heap of stones he took out M.O.3-knife used by him for committingthe crime, which was recovered by P.W.15 in the presence of P.W.8 andanother witness Mahesh under Ex.P.6-mahazar. P.W.8-Saravanan, who is awitness in Ex.P.6 also corroborates the evidence of P.W.15 on his score.He had sent the material objects connected with this case to the Courtunder Form-95, with a letter of requisition to send the same for chemicalanalysis. 13.P.W.10 is the head clerk of Judicial Magistrate No.I,Mayiladuthurai. According to him, as per Ex.P.9-requisition, the materialobjects connected with this case were sent to the Forensic ScienceLaboratory for chemical analysis with a requisition letter from the Courtunder Ex.P.10. After analysis, Ex.P.20-chemical analyst's report wasreceived from the Forensic Science Laboratory on 20.12.1999 and anotherreport Ex.P.11 was received on 17.12.1999 and Ex.P.12, dated 22.1.2000 wasreceived in the Court. 14.The accused was produced before the Judicial Magistrate forjudicial remand by P.W.15. He has examined the other witnesses andrecorded their statement and after completing the investigation P.W.15 hasfiled the final report on 21.1.2000 against the accused under Section 302IPC.15.When incriminating circumstances were put to the accused underSection 313 of Cr.P.C., the accused denied his complicity with the crime.The accused has not examined any witness or exhibited any document on hisside. After going through the evidence both oral and documentary thelearned trial judge has come to the conclusion that the accused is liableto be convicted under Section 304 (ii) IPC and accordingly convicted andsentenced the accused to undergo 7 years RI and slapped a fine ofRs.5,000/- with default sentence. Aggrieved by the findings of thelearned trail Judge the accused had preferred this appeal.16.Now the point for determination in this appeal is whether theconviction and sentence passed by the learned trial judge under Section304(ii) IPC against the accused is sustainable for the reasons stated inthe memorandum of appeal?17.The Point:- 17(a) The learned counsel appearing for the appellantMr.T.R.Sivaram (junior of Mr.K.V.Sridharan) took enormous pain in takingthis Court through the entire evidence. The learned counselMr.T.R.Sivaram would point out some of the discrepancies found in theinvestigation. The learned counsel would represent that even according tothe prosecution P.W.1 is not an eye witness to the occurrence, but P.W.15,investigating officer, in his cross-examination would depose that P.W.1- https://hcservices.ecourts.gov.in/hcservices/ Ananthan is an eye witness and even in his statement recoreded underSection 161(3) of Cr.P.C., P.W.1-Ananthan has stated that he is an ocularwitness to the occurrence. The learned counsel would further submit thateven the trial Court in it's judgment in more than one occasion hasreferred to P.W.1 as an eye witness to the occurrence. A mistakecommitted by the investigating officer and also Court in referring P.W.1as an eye witness in 161(3) Statement as well as in the judgmentrespectively will not vitiate the entire case of the prosecution. P.W.1-Ananthan neither in his evidence nor in the complaint-Ex.P.1, preferred byhim, has stated to have witnessed the occurrence. The learned counsel forthe appellant would further state that according to P.W.1, at the time ofoccurrence he was conversing with P.W.2, P.W.3, P.W.4 & P.W.6 near theplace of occurrence at old bus stand, Mayiladuthurai, but at the sametime P.W.3, P.W.4 & P.W.6 were examined as eye witnesses. According tothe prosecution, P.W.1 is said to have engaged in the conversation withP.W.1, P.W.2, P.W.3, P.W.4 & P.W.6 at the place of occurrence. But evenaccording to P.W.1, he has not witnessed the occurrence, whereas P.W.3,P.W.4 & P.W.6 would depose that they have witnessed the occurrenceaccording to the learned counsel for the appellant it cannot bebelievable, in the event P.W.2-another eye witness, turned hostile. Butwhile conversing in a public place i.e., near a bus stand it cannot beexpected that all the persons to have witnessed the occurrence. Out ofP.W.1, P.W.2, P.W.3, P.W.4 & P.W.6, who were conversing at the time ofoccurrence, the occurrence was witnessed only by P.W.3, P.W.4 & P.W.6according to their evidence. The fact that P.W.1 has not witnessed theoccurrence whereas P.W.3, P.W.4 & P.W.6, according to the prosecution,alone have witnessed the occurrence cannot be believed, according to thelearned counsel for the appellant, cannot hold any water. Further thefact that P.W.2 has failed to support the case of the prosecution will notderive us from taking any adverse inference against P.W.3, P.W.4 & P.W.6.There is no delay in preferring the complaint by P.W.1 and registering theFIR by the police. The evidence of P.W.3, P.W.4 & P.W.6 is that at thetime of occurrence, there was a quarrel between the accused and the victimand the victim had landed blows on the face of the accused, butimmediately the accused took out M.O.3-knife from his waist and stabbedthe victim on his left chest which proved to be fatal. The evidence ofP.W.3, P.W.4 & P.W.6 in this aspect has been corroborated by the medicalevidence of P.W.12, the post-mortem doctor. According to P.W.12, thedoctor, who had conducted post-mortem and issued Ex.P.14, post-mortemcertificate, the single stab injury found on the corpse of the deceased issufficient in the course of nature to cause death to the victim. It is inevidence that the stab injury is caused on the left chest had extended tothe left lung of the deceased causing fracture to the second rib on theleft side of the chest of the victim. Under such circumstances, itcannot be said that the findings of the learned trial judge that theaccused is guilty under Section 304(ii) IPC is erroneous. https://hcservices.ecourts.gov.in/hcservices/ 17(b)The learned counsel for the appellant would contend that thesentence awarded to the accused under Section 304(ii) IPC is on the higherside and while awarding the sentence the learned trial judge has failed toconsider as there was only one stab injury inflicted by the accused andalso failed to consider the age of the accused and the sudden quarrelwhich arose between the accused and victim immediately before theoccurrence. Relying on the dictum of this Court in 1981 L.W. Crl 136(Jabamalai Royappan and another In re:), the learned counselMr.T.R.Sivaram, appearing for the appellant would contend that a lessersentence of two years RI may be imposed in stead of 7 years RI. The factsof the above cited by the learned counsel for the appellant is that:"the accused in that case were charged under Section 302r/w 34 IPC. At the time of occurrence the accused in that casethe victim, who was a man of questionable character andspendthrift, was living alone after his wife had deserted him.Two years prior to the occurrence, the victim had developedillicit intimacy with one Siluvaimuthu Ammal of Puthur Village,the wife of P.W.7, and the same was continued till the date ofoccurrences. On the date of occurrence, at about 7.30 am, A1who is an ex-police constable and A2 who is a cooly, went to thetea shop of P.W.1 and took tea. At that time, P.W.6 also camethere besides the deceased. At that time, the victim hadcomplained to P.W.6 that A1 had beaten him on the previousnight. A1, on being enquired by P.W.6, replied that he had doneso, because the victim/deceased came to his village in the oddhours with apple only to bring disgrace to the villagers.Thereafter, both the accused tripped the victim thereby makinghim fall down. After the victim had fallen down, A1 held thevictim to the ground by pressing his left palm on the chin ofthe victim and fisted on the face and chest of the victim withhis right hand and A2 kicked on the stomach and the flank of thevictim, which resulted in the death of the victim. The accusedfaced a trial under Section 302 IPC.The trial Court convicted the accused and sentenced them toundergo life imprisonment under Section 302 IPC. But a Bench ofthis Court, on appeal, held that the nature of the offence willsquarely attract a punishment under Section 304(ii) IPC andaccordingly convicted and sentenced the accused to undergo 2years RI in stead of life imprisonment.In the above said dictum it is to be noted that both the accused, at thetime of committing the crime, have assaulted the victim only with hand andno weapon was used. Only under such circumstances, taking a lenient view,this Court in the above said dictum has levied the sentence of 2 yearsimprisonment. But in the case on hand admittedly the accused had usedM.O.3-knife in committing the crime. https://hcservices.ecourts.gov.in/hcservices/ 17(c)The learned counsel relying on 2005 SCC (Cri) 1050 (Raja Ram Vs.State of Rajasthan), would contend that the prosecution has failed totreat P.W.1 as hostile witness since he has not supported the case of theprosecution as per the evidence of P.W.15. P.W.15, as I have alreadydiscussed, has stated in the cross-examination that P.W.1 before him(P.W.15) has stated to have seen the occurrence. But before the Court hehas not deposed as he has seen the occurrence. It is pertinent to benoted here that neither in Ex.P.1-complaint preferred by P.W.1 nor beforethe Court P.W.1 has stated that he has seen the occurrence. Under suchcircumstances, on the basis of the statement of P.W.1 recorded undersection section 161(3) of Cr.P.C., it cannot be said that P.W.1 is an eyewitness and deviated from the case of the prosecution. So the dictum in2005 SCC (Cri) 1050 (Raja Ram Vs. State of Rajasthan), which lays theprinciple that "a prosecution witness who did not support the case of theprosecution if not declared hostile the evidence of such witness if reliedupon by the defence would bind the prosecution" cannot be applicable tothe facts of the case on hand.17(d)The learned Additional Public Prosecutor relying on 2007(3) SCC119 (Mohd.Shakeel Vs. State of A.P.), would contend that in a case ofsimilar nature the Honourable Apex Court have ordered six years RI to anaccused who has been convicted under Section 304(ii) IPC setting aside thelife imprisonment and in that case the accused was in custody from theyear 1999 till 2006, when the appeal was disposed of by the HonourableApex Court. 18.The other ratio decidendi relied on by the learned AdditionalPublic Prosecutor is 2006(2) MLJ (Crl) 1023 (Bunniala Chaudhary & Othersvs. State of Bihar), where in a case of similar nature the Honourable ApexCourt has awarded 5 years RI for an accused who has been charged underSection 304(ii) IPC. The relevant observation of the Honourable ApexCourt in the above said dictum runs as follows:-"We have given our thoughtful and anxious consideration tothe rival contentions of the learned counsel. The next questionis what is the offence which is brought home to BunnilalChaudhary(A1)? It is not in dispute that the injury inflictedon the left side of the chest of the deceased is single one. Onexamination, Dr.Vijay Kumar found the injury situated abovenipple on the left side of the chest extending 1" x ½ "penetrating wound. On dissection, left lung was fondpenetrated. Dr.Vijay Kumar has not opined that the injury wassufficient in the ordinary course of nature to cause death. Thatwas not even stated to be likely to cause death. No attempt wasmade by Bunnilal Chaudhary to cause serious injury on any vitalpart of the body of the deceased. There was no motive orintention of Bunnilal Chaudhary to have murdered Shambhu Raut.Therefore, the question is whether the offence can be said to becovered by Clause (iii) of Section 300 of the IPC. https://hcservices.ecourts.gov.in/hcservices/ That Section requires that the bodily injury must beintended and the bodily injury intended to be caused must besufficient in the ordinary course of nature to cause death. Thisclause is in two parts:- the first part is a subjective onewhich indicates that the injury must be an intentional one andnot an accidental one; the second part is objective in thatlooking at the injury intended to be caused, the court must besatisfied that it was sufficient in the ordinary course ofnature to cause death. We think that the first part is compliedwith, because the injury which was intended to be caused was theone which was found on the person of Shambhu Raut. But thesecond part, in our opinion, is not fulfilled because but forthe fact that the injury caused had penetrated the lung, deathmight not have ensued. In other words, looking at the matterobjectively, the injury, which Bunnilal Chaudhary intended tocause, did not include specifically the cutting of the leftlungs but to wound Shambhu Raut in the neighbourhood of thenipple on left side of chest. Therefore, we are of the opinionthat Clause (iii) of Section 300 does not cover the case.Inasmuch as death has been caused, the matter must still comewithin at least culpabe homicide not amounting to murder. Thereagain, Section 299 is in three parts. The first part takes inthe doing of an act with the intention of causing death. As wehave shown above, Bunnilal Chaudhary did not intend causingdeath and the first part of Section 299 does not apply. Thesecond part deals with the intention of causing such bodilyinjury as is likely to cause death. Here again, the intentionmust be to cause the precise injury likely to cause death andthat also, as we have shown above, was not the intention ofBunnilal Chaudhary. The matter, therefore, comes within thethird part. The Act which was done was done with the knowledgethat Bunnilal Chaudhary was likely by such act to cause thedeath of Shambhu Raut. The case falls within the third part ofSection 299 and will be punishable under the second part ofSection 304 IPC, as culpable homicide not amounting to murder.We, accordingly, alter the conviction of Bunnilal Chaudharyfrom Section 302 to Section 304 Part-II, IPC and in lieu of theSentence of imprisonment for life imposed on him, we impose asentence of rigorous imprisonment for five years and to pay afine of Rs.1,000/- with default stipulation of two months simpleimprisonment."The same principle will be applicable to the present facts of the case. Itis in evidence in the case on hand that before the occurrence there was aquarrel between the victim and the accused and the victim also caught holdof the shirt of the accused and landed blows on the face of the accused,thereupon the accused got enraged took out M.O.3-knife from his waist andstabbed on the left chest of the victim. The impact was so grave tofracture the second rib of the victim's lung. So the act of the accusedwill attract the offence under part (iii) of section 299 IPC i.e, with a https://hcservices.ecourts.gov.in/hcservices/ knowledge that the fatal injury he is causing is likely to cause the deathwhich attracts a punishment under Section 304(ii) IPC. Point is answeredaccordingly.19. In fine, the appeal is dismissed, but with the followingmodification in the sentence imposed by the trial Court in S.C.No.102 of2000 on the file of the Additional Sessions Judge, Nagapattinam. Theaccused is convicted under Section 304(ii) IPC and sentenced to undergo 5years RI in stead of 7 years RI. The fine imposed by the trial Court willsustain. The learned trial Judge is directed to secure the accused tosend to prison to undergo unexpended portion of the sentence. Set off isgranted under Section 428 of Cr.P.C.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarssvTo,1.The Additional Sessions Judge, Nagapattinam.2.-do-The District & Sessions Judge, Nagapattinam.3.The Judicial Magistrate NoI, Mayiladuthurai.4-do-The Chief Judicial Magistrate, Nagapattinam.5.ThePublic Prosecutor, High Court, Madras.6.The Inspector of Police, Mayiladuthurai, (Cr.No.1452/1999).7.The Superintendent of Central Prison, Cuddalore.8. The District Collector,Nagapattinam.9. The Director General Of Police,Mylapore, Chennai.1 cc To Mr.K.V.Sridharan, Advocate, SR.43231.Crl.A.No.777 of 2001 AKR(CO)RVL 23.07.2007