In Re : Ramaiyan Life Prisoner Convict No. 1747, Central Prison, Palayamkottai

K.M. Natarajan, J.—The accused Ramaiyan, aged 78 years in S.C. No. 106 of 1983 on the file of the Sessions Judge, Kanniyakumari

Division at Nagercoil, has preferred this appeal challenging the legality and correctness of his conviction under S. 302, I. P.C., and the sentence for

imprisonment for life. The accused was tried for the charge of murder under S. 302, I.P.C, on the allegation that on 22-2-1983 at Kurunthancode

in front of their house caused the death of his eldest son Chellappan by stabbing him with knife. To substantiate the said charge, the prosecution

examined P. Ws. 1 to 17, filed Exs. P1 to P29 and marked M.Os.1 to 6.

The facts of the case disclosed from the oral and documentary evidence, can be briefly stated as follows: The accused has got three sons,

namely, the deceased Chellappan, Rajamani, P.W. 3 and Ganesan P.W. 1. All of them were married. The house and other properties were also

divided into three shares and each son was given his respective share. They have got their land about 150'' away from their house, in which there

were six palmyrah trees and each son was entitled to two trees as per the partition. The accused who was staying with the second son P.W. 3,

was enjoying the two palmyrah trees allotted to the deceased Chellappan by getting sweet toddy and also giving it to the toddy shop, in respect of

which some enmity arose between the father and son.

On the day of the occurrence, namely, on 22-2-1983, at about 7:30 P.M. the accused was making some baskets with the palmyrah leaves by

using a knife. The deceased was near him at that time. There were exchange of words between the deceased and the accused in respect of the

accused enjoying the palmyrah trees allotted to the deceased. The deceased after exchange of words demanded his father, the accused, to give

him betels. But the accused refused. When he refused, the deceased saying that you are refusing to give betel, attempted to beat him after getting

down from the pial. At that time, the accused stabbed him. The deceased warded off the cut with the left hand and the stab fell on his left abdomen

and intestines came out.

Thereafter the two sons of the accused, namely, P. Ws. 1 and 3, and Ors. took the deceased to the Nagercoil Government Hospital. P.W. 11,

Medical Officer attached to the said hospital, examined him at about 9:40 P.M. on the same day for the injuries said to have been caused with

knife by the father at about 7 P.M. at his residence. He found the following two injuries.

Incised wound 7 x 3 cm. opening into the peritoneal cavity through which intestine is coming out. Site in the left iliac fossa, transversed in

direction.

Incised wound transverse on the front of left forearm 5 x 1 x 2 cm.

Ex. P18 is the duplicate copy of the Accident Register wherein he made necessary entries. On receipt of intimation Ex. P14 from the Medical

Officer, P.W. 9 Head Constable attached to the Kottar Police Station went to the hospital. Since the injured Chellappan was not in a position to

talk, his brother P.W. 1 gave the complaint Ex. P1. On return to the police station, he registered a case in Crime No. 136 of 1983 under S. 324,

I.P.C. Ex. P15 is the printed First Information Report. Thereafter he transferred the same to the concerned Eraniel Police Station. On receipt of

the same, P.W. 16 registered a case of his police station and took up investigation. When he went to the hospital at about 11 a.m. (23-2-1983) he

learned that at about 10:45 A.M. the injured Chellappan died. Ex. P22 is the death intimation received by P.W. 14. The same was forwarded to

Eranial Police Station. The section of the offence was altered into one of S. 302, I.P.C.P.W.17, Inspector of Police, Eraniel, took up investigation

and inspected the scene place at about 3 P.M. He prepared the observation mahazar Ex. P2 and drew the rough sketch Ex. P26. He seized

bloodstained earth and sample earth (MOs. 5 and 6) under Ex. P3 and also the chimney M.O. 4 which was found hanging in the scene house.

Thereafter he examined some witnesses. On 24-2-1983 between 6:45 A.M. and 9 A.M. he held inquest during which he examined P. Ws.1, 3

and others. He seized the bloodstained clothes M.Os. 1 and 2 from P. Ws. 1 and 3 under Ex. P27. Ex. P28 is the inquest report prepared by him.

Incised wound on the left side of abdomen 1"" above left iliac crest over the left iliac fossa, transverse direction 246 above the anterior to the

anterior superior iliac spine running posteriorly size 7 cm. through which intestine protrudes with multiple punctures 2"" of lower gangrenous. Totally

6"" of intestines seen outside the body. Size of wound 7 cm x 3 cm with intestines.

Transverse incision in the middle of left forearm 5 cm with sutures.

According to the doctor, death would have occurred 23 to 25 hours prior to post-mortem examination. He opined that the deceased would

appear to have died of shock and haemorrhage and gangrene due to injury to vital organs. External injury No. l with the corresponding internal

injuries could have been caused by a weapon like M.O.3. External injury No. 2 could have been caused while warding. External injury No. 1 with

the corresponding internal injuries are sufficient to cause death in the ordinate course of nature.

P.W. 17 arrested the accused on 27-1-1985 at 8:30 P.M. The accused volunteered to give a confessional statement and the same was reduced

into writing. The admissible portion of the statement is Ex. P6. In pursuance of Ex. P6 he took P.W. 17 and party to Kurunthancode and from the

west of the scene place, he took out mud and from there he took out M.O.3 knife and the same was seized under cover of mahazar Ex. P7.

Thereafter the accused was sent for remand. P.W. 17 sent a requisition to the court for sending the bloodstained material objects to the Chemical

Examiner.

P.W. 12, Judicial Second Class Magistrate, Nagercoil on receipt of a requisition from the Medical Officer, went to the Government Hospital at

about 1 A.M. on 23rd February, 1983 and he recorded the dying declaration of the injured Chellappan in the presence of the Medical Officer

P.W. 11. Ex. P21 is the dying declaration recorded by him. Ex. P20 is the certificate given by the Medical Officer P.W. 11 that the patient was

conscious and was in a position to give statement.

P.W. 10, Judicial Second Class Magistrate, Nagercoil on receipt of the proceedings from the Chief Judicial Magistrate on 1st March, 1983, to

record the confessional statement of the accused, observed all the necessary formalities and gave necessary warnings and time for reflection to the

accused. After being satisfied that the accused was willing to give a confessional statement, he recorded the statement from him on 17-3-1983 at

8:15 P.M. The confessional statement and connected proceedings are marked as Ex. P16 and he sent the same to the Judicial Second Class

Magistrate''s Court, Eraniel with a covering letter Ex. P17.

P.W. 8 is the Head Clerk of the Judicial Second Class Magistrate''s Court, Eraniel. He deposed about his sending the material objects to the

Chemical-Examiner under the direction of the Magistrate. Exs. P11 and P12 are the reports of the Chemical Examiner and the Serologist

respectively. After completing the investigation P.W. 17 laid the charge sheet against the accused under S. 302, I.P.C. on 27-4-1983.

When the accused was examined with reference to the incriminating process of evidence, he totally denied the prosecution evidence and stated

that the witnesses are deposing falsely. He denied having voluntarily made the judicial confession. He also denied the confession recorded under S.

27 Evidence Act and having produced the knife. No witness was examined on behalf of the accused. The learned Sessions Judge for the reasons

stated in his judgment convicted the accused under S. 302, I.P.C. and sentenced him as stated in the opening para of the judgment. Hence the

appeal. Since the accused was not in a position to engage a counsel of his choice, the Madras High Court Legal Aid and Advisory Board engaged

Mr. P. Venkatasubramanian, Advocate to defend the accused.

Learned Counsel for the appellant, Mr. P. Venkatasubramanian. submitted that even accepting the entire case of the prosecution, in the

circumstances of the case, the offence would not fall under S. 302, I.P.C. but only under S. 304, Part II, I.P.C. According to the learned Counsel,

from the oral and documentary evidence adduced on the side of the prosecution, it is seen that there was a wordy quarrel between the deceased

and the accused, that it was sudden quarrel, that during the course of the same when the deceased attempted to beat him, the accused, who was

aged 78 years and who was having a knife in his hand already in connection with the profession, dealt one blow and as a result of the same the

deceased succumbed to the injury one day later at the hospital and that as such at no stretch of imagination, it can be stated that the accused

intended to attack and cause the particular injury which proved to be fatal. In support of the above contentions, the learned Counsel drew us to

various portions of the evidence adduced in the case. It is seen from Ex. P1 report given by P.W. 1 that at the time of the occurrence the accused

and the deceased were talking in the pial of the house and during the course of the conversation there was a wordy quarrel in respect of enjoying

the palmyrah trees. Even after the same, the deceased demanded the accused to give him betel. When the accused refused, the deceased

attempted to beat his father, the accused. The accused was provoked and then stabbed the deceased once. It is also specifically stated in Ex. P1

that the occurrence took place all of a sudden. Even in the dying declaration Ex.P21 the deceased has stated that in the house at the time of the

occurrence there was exchange of words between him and his father and at that time his father stabbed him on the left abdomen and left elbow.

From the judicial confession Ex. P16, which is relied on by the learned Sessions Judge, it is seen that the accused has categorically stated that he

returned to the house at 11 P.M., that the deceased quarreled with him and also threatened to stab him with knife. He took out a kambu and beat

the deceased on the left leg. The deceased also cut him with knife and threw the same. Thereupon he picked up the knife, and cut him once.

Though he has given a varying version in respect of the particulars of the quarrel, yet his confession clearly shows that the occurrence took place all

of a sudden, that there was a wordy quarrel, that the deceased began to attack him, that the accused was provoked and that only in retaliation he

gave one blow with the weapon which the deceased threw. P.Ws. 1 and 2 in their evidence have categorically stated that there was a wordy

quarrel between the deceased and the accused, that thereafter the deceased demanded the accused to give him betels, that when the accused

refused to give him betels, the deceased attempted to beat his father the accused and at that time the accused stabbed him by saying that he was

coming to beat him. Their evidence fully supports the contention of the learned Counsel for the appellant that there was a wordy quarrel between

the accused and the deceased and since the deceased attempted to beat his father the accused, he gave one blow. In the circumstances of the

case, we are of the view that it cannot be said that the offence committed by the accused would fall under S. 302, I.P.C, but would fall only under

S. 304, Part II, I.P.C. as there was a sudden quarrel and as a result of the same, the accused who was aged 78 years, was provoked and gave

one blow to his son and unfortunately he died later in hospital. It cannot be said that he intended to cause that particular injury which proved to be

fatal. Hence the offence would fall under S. 304, Part II. I.P.C. As regards the actual occurrence, the prosecution has adduced acceptable

evidence through P Ws. 1 and 2. through P.Ws. 3 to 5 were treated as hostile. The evidence of P.Ws. 1 and 2 is corroborated by the earlier

report Ex. P1, the Judicial dying declaration Ex. P21, the Judicial confession given by the accused Ex. P16 and the medical testimony of the

doctors who examined him and conducted post-mortem examination. For all these reasons, the conviction of the appellant under S. 302, I.P.C.

and the sentence are set aside and instead, he is convicted under S. 304, Part II, I.P.C. and sentenced to undergo rigorous imprisonment for five

years. With the above modification the appeal is dismissed.