In Re. : Sugumaran alias Eli

Singaravelu, J.—The Appellant herein has been convicted by the learned Sessions Judge (IX Additional), Madras, for an offence u/s 302,

I.P.C., for having caused the death of one Murugan at 10:30 p.m. on 7th September, 1980 at Canal Bank Road, Namasivayapuram,

Choolaimedu, and sentenced to imprisonment for life. Hence the appeal.

The following facts are gathered from the records of the case. The Appellant is a young boy aged about 19 years and a washer-man by

profession. Deceased Murugan was also a washerman residing in the same place. There is an over for steam washing the clothes near the place of

occurrence. The deceased was residing at East Namasivayapuram and the Appellant was residing at West Namasivayapuram. It appears that the

oven is common and the deceased was also making use of that oven for steam washing the clothes. Nevertheless, this was objected to by the

Appellant on the ground that the deceased need not come to that oven and he can wash clothes some-where else. This objection was brought to

the notice of the brother of the Appellant by the deceased and he took the Appellant to task and asked him to keep quiet. Therefore, there was

some bitterness between the two on account of this.

On the date of occurrence, i.e., on 7th September, 1980, at about 10:30 p.m. deceased Murugan was lying outside his house after night meals

at the place marked in the sketch, Ex.P11. At that time a girl P.W. 4, Nagu, who is also residing in the same locality, was proceeding to get tea,

and Murugan, who was lying sarcastically remarked whether she was going in search of the accused insinuating thereby that she was going in

search of her lover. P.W. 4 did not answer and went away, but the Appellant himself was loitering some-where near the temple and when he-

learnt that the deceased taunted her as aforesaid, the Appellant immediately came to the place where the deceased was lying and challenged him

stating that he was always making fun of him and that he will stab him and tear his abdomen. So saying the Appellant look a knife from his waist

and stabbed Murugan on his left chest. This was witnessed by P.W. 1, wife of the deceased and also by P.Ws. 2 and 3, who are all neighbours.

When the witnesses ran to the scene, the Appellant slipped away with the knife and the victim died almost instantaneously.

P.W. 1, wife of die deceased, then went to Ghoolaimed police station at 10:50 p.m. and gave the first information report Ex.P1 to P.W. 9. This

was registered u/s 302, I.P.C.. and investigation immediately started by sending express reports, to the higher official. Meanwhile, the abused ran

to Kodambakkam Police station and surrendered himself before the police informing them about the occurrence. The investigating officer, P.W. 9,

proceeded to the scene of occurrence within a short while and then proceeded to Kodambakkam police station where the Appellant had taken

shelter. The Appellant was interrogated and he made a confessional statement, the admissible portion of which is Ex.P2. In pursuance of the same,

the Appellant took the police party to a house near Choolaimedu and took out M.O. 5, knife from a thorn bush which was recovered by the police

under a mahazar Ex.P3, attested by a local witness, P.W. 7 and another. The investigating officer then returned to the scene of occurrence and

after preparing the observation mahazar and conducting inquest over the dead body from 1:30 a.m. and 3:15 a.m. sent the dead to the General

Hospital for autopsy. P.W. 15 also seized the blood stained clothes M.Os. to 4 M. Os. 1 to 5 were sent for chemical examination through court

and they revealed human Mood stains.

P.W. 13. Dr. Balakrishna Rao, Assistant Professor of Forensic Medicines, conducted autopsy oft the dead body of the deceased Murugan on

8th March, 1980 and found on him a stab injury on the left aide of the chest measuring 3,5xcl x 15 cm cutting the lobe of left lung and piercing the

left side of the chest and also the pulmonary artery and bronchus (wind pipe) on the left side. According to the doctor, the deceased would have

died as a result of the stab injury to the ''heart, and left lung. Ex P.13 is the post mortem certificate. He opined that the knife M.O.5 could have

caused the injury on the deceased.

The accused was sent by the police for examination injury on his person and P.W. 14 examined him and found, an incised would 3/4"" in length

on the index'' finger on the right hand. The injury was simple and Ex.P.14 is the extract from the accident register. According to the doctor, if a.

person holds a knife a knife M.O. 5 and assaults another, such an injury could have been caused.

As already stated, the Appellant was arrested by P.W.15 on 7th September, 1980 it self at 11:15 p.m. and after completing the investigation

P.W. 15 laid charge sheet against the Appellant. When the Appellant was questioned u/s 313, Code of Criminal Procedure. he pleaded not guilty

and stated that he did not stab Murugan. Mr. N. Doraiswami, learned Counsel engaged by the Madras District Committee for Legal Aid and

Advice argued the case of the Appellant before us.

Now, we have three eye witnesses for the occurrence. P.W. 1 Muniammal is none else than the wife of the victim who is a resident of

Namasivayapuram, very dose to the residence of the Appellant P.Ws. 2 and 3 are also residents of that locality and they are also washermen by

profession, They all have stated that on the night in question, they saw the Appellant coming to the place where Murugan was lying and after a

short altercation, the Appellant stabbed Murugan oh his chest with M.O. 5 and left the scene P.Ws. 1 to 3 are not chance witnesses and they are

competent and speak to the occurrence. The learned Sessions Judge accepted the evidence of P.Ws. 1 to 3, and found that the Appellant was

responsible for the assault on the deceased.

The medical evidence furnished by P.W. 13 also fits in which the evidence of the eye witnesses. There was absolutely no delay in laying the

complaint. The occurrence was at 10:30 p.m. and the first information report was laid at 10:50 p.m. itself. The Appellant himself has been

apprehended at Kodambakam police station at 11:15 p.m. The inquest started at 12:30 a.m. the same night and therefore everything was done

very promptly.

With reference to the reason for this assault, we have the evidence that the Appellant and the deceased were not on cordial terms; since the

Appellant had objected to the deceased using the oven near the river bed. The immediate provocation was that the deceased taunted a girl P.W.4

by asking whether she was going in search of the Appellant, meaning thereby that she was going in search of her lover. All these factors taken

together clearly show that the Appellant was responsible for the death of the deceased by stabbing him with a knife M.O. 5.

But, the more important point for consideration is whether the offence would come u/s 302, I.P.C. Mr. Doraiswami, learned Counsel for the

Appellant, strenuously contended that this is a case of inflicting a single stab and it was not a pre-meditated attack with an intention to cause the

death of the deceased. The learned Counsel cited several rulings of the Supreme Court before us and they are as follows:- In Kulwant Rai v. State

of Punjab, A.T.R. 1982 SC. 128, the Supreme Court has held that in a case of single stab after a short quarrel, Section 302 cannot be attracted,

since the accused could not be said to have had the intention to commit the murder of the deceased. In that case also, there was no premeditation

and it was like a hit and run AIR 1983 185 (SC) , was also a case of a single stab dealt in the heat of altercation and intention to kill was not

apparent. In that case, the Supreme Court held that the conviction u/s 302, I.P.C. is not proper and that the offence would properly come u/s 304,

Hart II, I.P.C. In Jagrup Singh v. State of Harayana, 1981 L.W. Cri. 278, the Supreme Court observed that whether the offence would fall u/s

302 or u/s 304, Part II, I.P.C., would depend upon the intention or the absence of intention to cause death. The nature of the intention must be

gathered from the kind of weapon used and the circumstances attendant upon that case. In that case, the Supreme Court held that on the totality of

the evidence before it, it would not be possible to come to a conclusion that when the Appellant struck the deceased with the blunt side of a

gandhala, he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. The injury was caused in the

heat of the moment without premeditation and therefore, it was held that that case was covered by Exemption IV to Section 300, I.P.C.

Applying these principles to the facts of our case, we are of opinion that the ratio found in these cases is applicable to the case on hand. Here

is a case where there was no premeditation. The deceased was lying after his night meal at 10:30 p.m. and there was no confrontation between the

Appellant and the deceased. It was just by accident that the girl P.W.4 passed that side and the deceased happened to mock at her. The

Appellant himself who is a young boy aged 19 years, was standing somewhere near that place, and when he heard this, he immediately rushed and

in a heat of fury and passion, he dealt one single blow on the chest of the deceased which proved to be fatal. Taking all the factors into

consideration, we are of opinion that the conviction u/s 302, I.P.C. cannot be sustained and that it would be proper to convict the Appellant only

u/s 304, Part II, I.P.C.

Before parting with this case, we would like to point out that in this case, the Appellant was examined by the doctor P.W. 14, immediately

after the occurrence and an injury was found on his person. In explaining the injury, the Appellant told, the doctor P.W. 14 that the same was

caused while he stabbed deceased Murugan a little while earlier. This part of the statement found in Ex.P.14 was shut out by the learned trial judge

as inadmissible in evidence. This, in our opinion, is erroneous. In Kanda Padayachi alias Kandaswamy Vs. State of Tamil Nadu, , it has been held

that the statement of an accused before a doctor even though he was in custody of the police, is admissible in evidence however incriminating it

may be. The Supreme Court pointed out that the statement of the Appellant (accused) does not amount to a confession and that it is only an

admission of fact-no doubt, an incriminating fact, which establishes the presence of the accused at the time of the occurrence. The Supreme Court

further observed that an admission of a fact, however incriminating, but not by itself establishing the guilt of the maker of such admission, would not

amount to confession within the meaning of Sections 24 to 26 of the Evidence Act,. Of course, now that this portion has been shut out from the

evidence, we are not looking into that portion for the purpose of the case and this observation is made only for future guidance of the Sessions

Judges and the Public Prosecutors.

The result of our discussion is that the conviction u/s 302, I.P.C. is modified and the Appellant is convicted u/s 304, Part II, I.P.C. and

sentenced to undergo rigorous imprisonment for five years. To the above extent, the appeal will stand allowed and will stand dismissed in other

respects.