Karuppaswamy Thevar vs The State

S. Nagamuthu, J.

1 The appellant is the sole accused in S.C.No. 62 of 1999 on the file of learned Principal Sessions Judge, Tirunelveli. He stands convicted for an

offence u/s 302 I.P.C. and sentenced to undergo imprisonment for life by judgment dated 15.11.1999.Challenging the same, the appellant has

come forward with this appeal.

The brief facts of the prosecution case is as follows:

i) The appellant is the father of the deceased. P.Ws. 1 and 2 are the wife and mother respectively of the deceased. P.W. 3 is a relative of the

deceased. P.Ws 1 and 2, the deceased and the appellant were living together under a common roof at Mangala Kudiyiruppu village. There used to

occur frequent petty quarrels between the appellant and P.W. 2. One week prior to the date of occurrence, the appellant quarreled with P.W. 2

and took Rs. 2,500/- for his expenses and left the house. On 02.05.1998 at about 11.00 p.m., the deceased and P.W. 1 were sitting in ''Mutram''

(Kw. Wk.) of the house chatting with each other and P.W. 2 was sitting inside the house. At that time, the appellant came and developed quarrel

with P.W. 2. The deceased questioned the appellant as to why should he indulge in such kind of quarrel even after having received Rs. 2,500/-

from P.W. 2. The appellant questioned the authority of the deceased to intervene, when he was talking to his mother-P.W. 2. In the said quarrel,

the appellant suddenly took out an Aruval and cut the deceased on his left small finger, ring finger, right hand and neck. When P.W. 1 raised alarm,

the appellant fled away from the scene. The occurrence was witnessed by P.W. 3, who had gone to the house of the deceased as a guest.

ii) P.W. 1 took the injured to the Tirunelveli Medical College Hospital. P.W. 7 admitted him as in patient at 11.50 p.m. The deceased was

conscious and told that he was assaulted by a known person at about 11.00 p.m. at his house with Aruval, while he was sleeping. He found the

following injuries on the body of the deceased:

A cut injury involving left hand little and ring finger with bleeding;

A linear cut injury over right side frontal the neck 10 X 5 cm exposing blood vessels muscles air leacked;

A incised cut injury 10cm X 3 cm X 1 cm over the right arm upper lateral aspect;

2 cut injury 3 cm X 2 cm over dorsum right hand over middle and ring finger.

Ex. P.4 is the accident register.

iii) On receiving intimation from the hospital, P.W. 9, a Head Constable attached to outpost Police Station at Tirunelveli Medical College Hospital

went to the hospital and recorded the statement of P.W. 1 at 1.30 a.m. on 03.05.1998 and forwarded the same to Thachanallur Police Station.

Mr.Babu Raj, since deceased, who was the then Sub Inspector of Police at the said Police Station, registered a case in Crime No. 183 of 1998

u/s 307 I.P.C. against the appellant. Ex. P.9 is the First Information Report. He forwarded Exs. P.1 and P.9 to the jurisdictional Magistrate, who

in turn received the same at 6.00 a.m. on 03.05.1998.

iv) P.W. 14, who was the Inspector of Police attached to Thachanallur Police Station, took up the investigation, visited the place of occurrence at

5.30 a.m. and prepared Ex. P.2 Observation Mahazar and rough sketch Ex. P.18 in the presence of P.W. 5 and another witness. Then he

recovered blood stained earth-M.O.3 and sample earth-M.O.4 in the presence of the same witnesses under Mahazar Ex. P.3. He examined P.Ws

1 to 4, 5 and few other witnesses on the same day. At about 10.00 am. on the same day, he arrested the accused in the presence of P.W. 6 and

another witness at Karaiyiruppu bus stop. On such arrest, the accused volunteered a confession, which was reduced into writing and the

admissible portion of the same is Ex. 19. In the said statement, he disclosed that he would identify the place where he had hidden the Aruval near

Thachanallur Uchi Mahali Amman Temple and produce the same. In pursuant to the said disclosure statement, he took P.W. 14 and the witnesses

to a place near Thachanallur Uchi Mahali Amman Temple and took out M.O.1 Aruval from a bush. P.W. 13 recovered the same in the presence

of the same witnesses under Ex. P.20, Mahazar. Thereafter, the accused was sent for judicial remand.

v) Continuing the investigation, P.W. 14, examined few more witnesses. On 26.06.1998 at about 5.30 p.m. the deceased died in the hospital and

on receiving Ex. P.3 intimation from the hospital, P.W. 14 prepared an express report adding Section 302 I.P.C under Ex. P.11 and forwarded

the same to the jurisdictional Magistrate. On the same day between 9 a.m. and 12 p.m. he conducted inquest on the body of the deceased and

prepared the inquest report Ex. P.21. He forwarded the dead body to the doctor for conducting autopsy through P.W. 12. with a requisition.

vi) P.W. 10, who was the then Tutor in Forensic Medicine, Tirunelveli Medical College Hospital, on receiving the said requisition, conducted post

mortem at 2.15 p.m. on 26.06.1998. He found the following injuries:

Healed cut injury (sutured and suture removed) on the front of right side of neck, 8cmX 1 cm X muscle deep on dissection it was muscle deep.

Healed sutured cut injury (suture removed) seen on the back of upper 1/3 of right arm 13 cm X 1 cm X muscle deep. On dissection it was

muscle deep.

Vertical cut found (tracheostomy surgical procedure)3 cm X 1 cm X trachea deep (wind pipe) seen on the lower of front of neck.

Healed wound 5 cm X 1 cm X muscle deep on the back of right hand at the base of middle and ring finger. On dissection it is muscle deep.

Healed wound 5 cm X 1 cm X muscle deep seen on the back of left hand at the base of little and ring finger. On dissection, it is muscle deep.

He finally opined that the deceased would appear to have died of complications of multiple injuries. Ex. P.8 is the post mortem certificate.

vii) P.W. 14, thereafter, examined the doctor who conducted the post mortem and other witnesses and forwarded the material objects to the

Court. He was transferred on 07.07.98. So, P.W. 15, who succeeded him, took up the investigation and examined P.Ws.10 and 12. At his

request material objects were sent for chemical analysis. Exs. P.16 and 17 are the Chemical Analysis reports.

viii) On completing investigation, he laid charge sheet against the appellant u/s 302 I.P.C. on 30.07.1998.

The Learned Principal Sessions Judge Tirunelvei framed a single charge against the appellant u/s 302 I.P.C. Since the appellant pleaded not

guilty, he was put on trial.

During trial, on the side of prosecution 15 witnesses were examined and 22 documents were exhibited and four material objects were marked.

When the appellant was questioned u/s 313 Cr.P.C. in respect of incriminating evidence available against him, he denied the same. He has

neither examined any witness nor marked any document on his side.

Having considered the materials available on record, learned Principal Sessions Judge has found the appellant guilty and has imposed

punishment as aforesaid. The appellant challenges the same in this appeal.

The learned counsel for the appellant would submit that P.Ws 1 to 3 would not have witnessed the occurrence, since it was very late night. He

would further submit that the deceased had told P.W. 7, Dr. Kandasamy that on 02.05.1998 at about 11.00 p.m. he was attacked by a known

person at his home when he was sleeping. The learned counsel would submit that the said statement of the deceased would indicate that while all

the inmates were fast asleep, the deceased would have been attacked and therefore, the assailants would not have been known to anybody. The

learned counsel would further submit that since P.Ws 1 and 2 were enraged over the frequent quarrels of the appellant, they have falsely implicated

the appellant in this case.

The learned counsel would further submit that there is delay in forwarding the complaint to the Court, which creates doubt in the case of the

prosecution. The learned counsel would further submit that the doctor who treated the injured between 02.05.1998 to 26.06.1998 has not been

examined and no medical record has been produced and thus the cause of the death could not be ascertained with certainty. The learned counsel

would further submit that the opinion of P.W. 10, Dr. Selvlaraj, that the deceased died due to complications, cannot be given much weightage.

Thus according to the learned counsel for the appellant, the cause of death has not been duly proved by the prosecution in this case.

Per contra, the learned Additional Public Prosecutor would submit that in this case, there is no delay in preferring the complaint by P.W. 1 and

that there are no reasons for P.Ws 1 to 3 to falsely implicate the appellant in this case. The reason stated by the appellant that since he was

quarrelsome, P.Ws 1 and 2 have chosen to falsely implicate him in this case, is too big a thing to swallow.

The learned Additional Public Prosecutor would further submit that the argument of the learned counsel for the appellant that normally, the

inmates P.Ws 1 and 2 would have been sleeping since it was late night, cannot be given weightage, since P.Ws 1 to 3 have specifically stated that

they were not sleeping as they were chatting with each other. He would further submit that though the doctor, who treated the injured in the

hospital has not been examined, when P.W. 10 has given an opinion that the death was attributable to the injuries, it is to be held that the

prosecution has proved that the injuries caused on the deceased alone have resulted in death.

We have considered the rival contentions and also perused the records carefully.

Admittedly, P.Ws 1 to 2, the deceased and the accused were living together under a common roof. The alleged time of occurrence is 11.00

p.m. It is quite natural that P.Ws 1 and 3 could have been at their house at that time. It is not even suggested by the defence that P.Ws 1 to 3 were

not present at the time of occurrence. The deceased had told P.W. 7, when he was taken to the hospital that he was attacked by a known person

at his house at 11.00 p.m. when he was sleeping. May be true that the deceased was sleeping when the first attack was mounted on him. But, it is

not necessary to infer that the other inmates like P.Ws 1 to 3 would have also been sleeping at the relevant time. Thus the presence of P.Ws 1 to 3

and that they were not sleeping at the time of alleged occurrence has been established by the prosecution, through the evidences of P.Ws 1 to 3

and other circumstances.

P.Ws 1 to 3 have categorically stated about the overt acts of the appellant. The evidence of P.W. 7 would corroborate the evidence of P.Ws

1 to 3. There are no reasons to reject the evidence of P.Ws 1 to 3. The argument of the learned counsel for the appellant that since the appellant

was indulging in frequent quarrels with P.W. 2-mother, P.Ws 1 and 2 were enraged over the same, and so they have chosen to falsely implicate

the appellant in this case, can hardly be accepted.

As pointed out earlier, in the statement made to P.W. 7, the deceased himself has stated that he was assaulted by a known person at his house

at 11.00 p.m. This statement is a dying declaration falling u/s 32 of the Evidence Act, requiring much weightage. This dying declaration also

corroborates the evidence of P.Ws 1 to 3. Thus, in our considered opinion, the prosecution has proved that the injuries on the deceased were

caused only by this appellant.

In respect of the cause of death, the prosecution relies on the evidence of P.W. 10. Admittedly, the deceased had undergone treatment as

inpatient in the hospital for about 53 days. The prosecution has not chosen to either examine the doctors who treated the deceased in the hospital

during the said period or to produce medical records. In the absence of the same, we are not able to know the condition of the deceased in the

hospital during the said period. Though it is a flaw in the case of prosecution, on that score alone, the entire case of the prosecution cannot be

thrown out.

P.W. 10, has stated that he found as many as 5 external injuries on the body of the deceased. Injury No. 3 was a surgical one made for

tracheostomy. Therefore, Injury Nos.1, 2, 4 and 5 alone were caused by the appellant. He also stated that the said four injuries and also the

tracheostomy wound were found healed. But bed sore wound was found on the upper part of back of right thigh. The doctor has not stated that

the death was directly attributable to the injuries. He has only opined that the death was due to the complications of the multiple injuries. Insofar as

the condition of lungs is concerned, P.W. 10 has mentioned as follows:

Both lungs found adherent to the chest wall. Apex of right lung; cut section-shows greenish white material surrounded by fibrous tissues. Base of

the left and right lung found consolidated. Cut section pus material oozing out.

The doctor has opined that the death is due to complications due to the injuries. He has not elaborated as to what are the complications, which

resulted in the death of the deceased. For this reason only, we feel that the treatment records and the evidences of doctors, who treated the injured

in the hospital, would be of more help to know as to what was the condition of the injured in the hospital during treatment and what was the

complication and whether the same was due to the injuries. As seen from the post mortem Certificate and also from the evidence of P.W. 10, we

could infer that all the injuries including the surgical one were found healed and there was no infection anywhere near the said injuries. But there

was infection only in the lungs. In our considered view, in the absence of any connection between these injuries and the infection to lungs, it cannot

be concluded with certainty that the complications stated by P.W. 10 are only due to the injuries. A careful scrutiny of the evidence of P.W. 10

would also go to show that it is not his opinion that the said injuries are sufficient in the ordinary course of nature to cause death. In view of the said

position, we are not convinced that the external injuries i.e injury Nos.1,2 and 4 found on the deceased, would be sufficient to cause death in the

ordinary course of nature. However, there can be no second opinion that the injury No. 1 found on the neck would be likely to cause death.

Now, we have to analyse whether the offence would fall u/s 302 I.P.C. To bring the act of the appellant within the fourth limb of Section 300

I.P.C., the prosecution is obliged to prove that the appellant had knowledge that the bodily injury which he has caused is likely to cause death. In

the instant case, the appellant has caused an injury on the neck, that too, with lethal weapon. It is common knowledge that any injury caused on the

neck with lethal weapon is likely to cause death. To that extent knowledge can be certainly attributed to the appellant. If that be so, the act of the

appellant would fall within the fourth limb of Section 300 I.P.C.

As it is clearly spoke to by P.Ws 1 to 3, the act of the appellant is not a premeditated one. After all, P.Ws 1 and 2, the deceased and the

appellant were all along living under a common roof. Except the frequent quarrels between P.W. 2 and the appellant, there is no other evidence to

suggest that they were on inimical terms. There is no evidence that the deceased and the appellant ever had any quarrel on any previous occasion.

Even at the time of occurrence, the appellant did not develop any quarrel with the deceased, but when the quarrel was going on between him and

P.W. 2, the deceased intervened, which culminated in the assault made by the appellant by lethal weapon. It is to be noted that the appellant did

not come there with lethal weapon. All these circumstances would go to show that the occurrence was not pre-medidated and it was only due to a

petty and sudden quarrel and a scuffle, in which the appellant had attacked the deceased. All these circumstances satisfy the requirements of

exception 4 to Section 300 I.P.C. Thus the act of the appellant would only fall within Exception 4 to Section 300 I.P.C., thereby bringing the

offence punishable u/s 304 (ii) I.P.C.

The learned counsel for the appellant would submit that the appellant is an old man facing the evening of his life and therefore, in the matter of

punishment, leniency may be shown to him.

We have considered the said plea and also having regard to the facts and circumstances of the case, We deem it appropriate to impose a

punishment of Rigorous Imprisonment for five years.

In the result, the appeal is partly allowed. The conviction and sentence imposed on the appellant u/s 302 I.P.C by the trial Court is set aside

and instead, the appellant is convicted u/s 304 (ii) I.P.C. and sentenced to undergo R.I. for five years. The sentence already undergone by him

shall be given set off. The lower Court is directed to issue necessary warrant to secure the custody of the accused and to commit him to prison to

undergo the remaining period of sentence, if any. In all the other aspects, the appeal is dismissed.