Mohan vs Stale by Inspector of Police Aralvoimozhi Police Station

R. Balasubramnian, J.—The Appellant in this appeal is A2 in S.C. No. 63/90 on the file of the Court of Sessions. Kanyakumari at

Nagercoil. He was tried along with two other accused arrayed as A1 and A3, A1 and A3 were acquitted of all the offences for which they were

charged and tried and the State had not filed any appeal against that acquittal. As far as the present Appellant is concerned, he was charged for

offences punishable u/s 302 and 307 I.P.C. and on being found guilty, he was sentenced to under go life imprisonment for the former offence and

to undergo four years rigorous imprisonment for the latter offence. Both the sentences were directed to run concurrently. It is the correctness of the

said judgment that is being questioned in this appeal before this Court. Heard the learned Counsel on either side.

We briefly summarise hereunder the case of the prosecution:

(a) A1 is dealing in jaggery. For manufacturing arrack, P.W.2 and his elder brother Murugan used to buy jaggery from A1 on credit. Three months

prior to the occurrence, P.W.2 purchased jaggery worth Rs. 200/- on credit from A1. On 02.11.89 at 6.00 p.m. A1 demanded payment of the

said money to P. Ws.1 and P.W1 replied stating that A1 can address that question to P.W.2/her husband. When P.W.2 was asked for payment,

he replied that he need not be asked for that money. Immediately A1 slapped on the face of P.W.2. When A1 was about to leave that place in his

cycle. P.Ws.1 and 2 told him that he cannot leave that place unless he convinces them as to why he beat P.W.2. Challenging that he knows how to

take the cycle, A1 left for Aralviozohi in a bus. At about 7.30 p.m. on that night, P. Ws.1 and 2 were in their house. Murugan, the younger brother

of P.W.2 and Manoharan, the elder brother of P.W.2 were also there having come to know about the earlier incident. At about 8.00 p.m. on that

day, all the three accused came there. A2 and A3 were on the road whereas A1 was coming on the rainfed canal A1, while so coming, pulled the

hand of P.W1 and P.W.1 immediately pleaded with A1 not to do anything and that she would pay the money. A1, not satisfied with that answer,

went, on to state that (sic) when she is not in a position to pay the money, she should accompany him and thus, attempted to take her out holding

her hands. P.W.1 raised a noise, which attracted the attention of P.W.2. Immediately he wanted to take his wife out of the clutches of A1. There

was a melee between P.W.2 and A1. Manoharan, who is the deceased in this case, intervened. A1 pushed him aside; then followed him and

caught hold of him. A3 also caught hold of him. A1 stated that Manoharan should be stabbed and immediately A2, with a knife, stabbed on his left

side neck. Manoharan advised P.W.2 to run away from that place and accordingly P.W.2 ran for his safety. A1 and A3 chased him and caught

hold of him. A2, at the instigation of A1, stabbed him thrice. All the accused ran away from the place of occurrence. Yesuvadiyan and others came

running towards the scene of occurrence. Manoharan died on the spot. P.W.2 was taken to the hospital in a car. The judicial Magistrate recorded

a statement from P.W.2. Later on the Sub-Inspector of Police of the Jurisdiction police station, also reached the hospital. Ex.P.1 is the information

given by P.W.2 to him.

b) P.W.3 turned hostile. At about 8.00 p.m. on 02.11.89. P.W.10 had prepared Ex.P.3/mahazar, which had been witnessed by P.W.4. He had

also witnessed the recovery of blood stained earth and sample earth under Ex.P.4/mahazar. P.W.5 is the Doctor, who was on duly in the

Government Hospital. He commenced post mortem on the body of the deceased at about 9.30 a.m. on 03.11.89. He found the following

symptoms on the body of the deceased:

On examination there was an incised wound 1-1/2"" x 1/2"" just 1/2"" above the centre of collar bone with 2-1/2"" depth passing down wards and

slightly backwards (Posteriorly). No other external injuries seen. Internal Examination: Heart: Empty Pale. Liver, Spleen, Lungs, Kidney: Normal in

size and shape C/s Pale. Stomach Empty. Hyoid Bone; Intact, Bladder full (full of urine). No fracture of skull bone. Brain size and shape normal

c/s Pale.

Ex.P.5 is the post mortem certificate. The Doctor was of the opinion that the deceased would appear to have died of shock and haemorrhage due

to injury to major vessels. The injury noticed by him, is sufficient to cause death. P.W.6 examined P.W.2 for the injuries sustained by him and he

found the following injuries on P.W.2:

(1) An incised wound 2"" x 2"" depth not probed over right side of back below the level of right scapula near midline transversely place.

(2) An incised wound of 2"" x 2"" x depth not probed below the level of left scapula on medial aspect transversely place.

3) An incised wound vertically placed 3"" x 2"" x 1/2"" over the lower end of Scapula left side.

Patient is conscious pulse 8/MP BP admitted in A.E. Ward. Discharged on 18.01.90. X-ray No. A1166/2.11.89 No bone injury. Surgeon Notes:

On exploring injury No. 1 pleura is out. By Dr. Jeyaraja: Exposing right lung ICB Done right side. Collection of 400 ml of blood.

The Doctor was of the opinion that injury No. 1 is grievous and injuries Nos. 2 and 3 are simple. P.W.7 performed surgery on P.W.2 for the

injuries sustained by him.

c) P.W.8 is the Magisterial Clerk, who would depose about the receipt of Exs.P11 and P.12 namely, the chemical examiner''s report and

serologists report. P.W.9 is the Sub-Inspector of Police. On receipt of intimation, he reached the police station at 10.25 p.m. on 02.11.89, where

he received the memo sent from the hospital. He examined P.W.2 and recorded his statement Ex.P.1. He came back to the police station and

prepared Ex.P.3/printed F.I.R.P. Ws.10 is the Investigating Officer, who took up the investigation and did inquest over the dead body of the

deceased between 12.00 midnight and 3.30 a.m. on the following day. Ex.P. 14 is the inquest report. He examined the witnesses and recorded

their statements. He recovered M. Os.5 and 6 under Ex.P.4 from the scene of occurrence. The accused were absconding. He went to the hospital

and examined P. Ws.1. He examined P.W.2 and recovered M. Os.1 and 2. After completing the investigation, he filed the final report against the

accused for the offences referred to earlier.

d) When the accused were questioned u/s 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against

them, they denied each and every circumstances projected against them as false and untrue. A1 would state that he is innocent and six months

prior to the date of occurrence. P.W.2 wanted jaggery to be given on credit, which he refused and therefore he had been falsey implicated in this

case. A2 would state that P.W.2 and the deceased arc residing close to his house and they are selling illicitly distilled arrack. A2 objected to that

business and complained about it to the police. The police arrested P.W.2 and the deceased and filed cases against them. Therefore P.W.2 and

the deceased have been vowing that likewise they would send A2 also to jail as well as send him out of town. They also threatened to stab A2. A3

would state that he also objected to the deceased and P.W.2 selling illicitly distilled arrack near his house and gave a complaint to the police.

Beyond that, he did not know anything else. He would state that he was also threatened by P.W.2 and the deceased. He would also state that

P.W.2, under the influence of arrack, used to conduct himself in a disorderly manner opposite to the house of A2, when he was observing the

rituals for his yearly visit to Sabarimala. They also threatened that they would burn his house. No witnesses were examined on their side.

The learned Counsel for the Appellant would contend that though three witnesses were examined as eye witnesses, yet P.W.3 turned hostile.

The statement of P. Ws.1 and 2 recorded u/s 161 of the Code of Criminal Procedure had reached the court only along with the final report and

therefore their evidence should be viewed with great care and caution. Ex.P.2 is the statement given by P.W.2 to the police. Taking Exs.P.1 and

P.2 together, it is seen that the case of prosecution is inconsistent on all material aspects. Therefore the learned Counsel for the Appellant would

contend that the evidence of P. Ws.1 and 2 should be totally disbelieved. Alternatively the learned Counsel would contend that the evidence

placed by the prosecution do show that there was a quarrel, which preceded the fatal attack on the deceased. On the materials placed, the

requirement of Exception 4 to Section 300 I.P.C. is clearly brought out. If that is so, then the conviction of the accused u/s 302 I.P.C. is bad in

law. The learned Government Advocate would respond to all the points raised.by the learned Counsel for the Appellant. He would state that the

oral evidence of P. Ws.1 and 2 is strictly in accordance with the version contained in Ex.P.1. Ex.P.1 had reached the court within a reasonable

time and there is no delay at all. If this is so, then sending the statements of P. Ws.l and 2 recorded u/s 161 of the Code of Criminal Procedure

belatedly, would not by itself affect the case of the prosecution. Ex.P.2 is the statement given by P.W.s in anticipation of his death. However, he

had survived Therefore at best, the statement of P.W.2 could be utilised only to contradict the witness himself and it cannot be used for any other

purpose. The learned Government Advocate would also state that the evidence of P. Ws.1 and 2 is cogent, consistent and strictly in accordance

with the averments contained in Ex.P.l. Therefore there will be no difficulty at all in accepting their case. As far as the argument advanced inviting

this Court to extend the benefit of exception 4 to Section 300 I.P.C. to the accused is concerned, the learned Government Advocate would

contend that it is the accused, who are the source for the quarrel and therefore they should not be allowed to take advantage of their own wrong.

We applied our mind to the arguments advanced by the learned Counsel on either side. It appears that P.W.2 has business dealings with the

accused. A1 is stated to be dealing in jaggery, which is one of the essential constituent for manufacturing arrack. P.W.2 appears to be

manufacturing illicitly distilled arrack. The case of the prosecution is that P.W.2 had bought some time ago. jaggery to the value of Rs. 200/- on

credit from A1 and that money had not been paid in time. In the above context, A1 had demanded, payment which P.W.1 was postponing for no

justifiable cause. On the date of occurrence early in the evening Al had come and demanded that amount from P.W.1, P.W.1 had told that she

need not be asked for that money and that A1 can address that question to P.W.2/her husband. Immediately A1 had slapped on the face of

P.W.2. When A1 was about to leave that place in his cycle, P. Ws.1 and 2 had told him that he cannot leave that place, unless he convinces them

as to why he slapped P.W.1. Challenging that he knows how to take the cycle, A1 had left that place. The occurrence is stated that to have taken

place around 8.00 p.m. on 02.11.89. The evidence of P. Ws.l and 2 is that, all the accused assembled in the scene of occurrence; A1 slated that if

P. Ws.1 and 2 have no means to Day the money then P.W.1 should follow A1; P.W.1 raised a hue and cry: immediately P.W.1 came out and

questioned as to how A1 could take his wife like that; there was a scuffle between P.W.2 and A1; at that the time Manoharan, the elder brother of

P.W.2 intervened: on coming to know about the earlier incident in the morning, Manoharan, the elder brother of P.W.2 as well his younger brother

had come there; Manoharan intervened in favour of P.W.2 and A1 pushed aside. Manoharan. A perusal of the evidence of P. Ws.1 and 2 would

clearly show that A1 pushed aside Manoharan; he did not stop there but followed him and A3 caught hold of him. On A1 inducing A2 that

Manoharan must be killed. A2 immediately responded by taking out a knife and stabbing him once. Manoharan succumbed to the injury sustained

by him later on. The evidence of the Doctor, who did post mortem coupled with the post mortem certificate, would establish beyond doubt that

Manoharan died due to homicidal violence. The evidence of P. Ws.1 and 2 would clinchingly establish that it is A2. who caused the fatal injury on

the body of the deceased. The circumstances brought to our notice by the learned counsel for the Appellant to disbelieve the oral evidence of P.

Ws.1 & 2 arc noted only to be rejected.

The fact remains that Ex.P.1 had reached the court within two hours after it was registered. It is also true that the statement of P. Ws.1 and 2

had reached the court only along with the final report. But nonetheless, we are of the opinion that from that mere fact the evidence of P. Ws.1 and

2 cannot be doubted. The version as put forward by P.W.1 and in Ex.P.1 is strictly adhered to not only by her in court but also by P.W.2. Going

by their entire evidence in toto, we do not doubt their evidence. Therefore we are of the opinion that the evidence of P. Ws.1 and 2 deserves

acceptance at our hands, as accepted by the learned sessions Judge himself Accordingly we believe the oral evidence of P. Ws.1 and 2. If that is

the position, then there will be no difficulty at all in sustaining the finding of the learned sessions Judge that it is the convicted accused, who caused

the fatal injury on the person of the deceased.

Even on this position, still we address ourselves the question as to whether the conviction of the Appellant for the offence punishable u/s 302

I.P.C. could be sustained or not. It appears from the oral evidence P. Ws.1 and 2 that to start with, A1 was in a mood to pull P.W.1 holding her

hand on the ground that P. Ws.1 and 2 had not repaid the money. This had irritated P.W.2 and therefore he stepped in, questioning the act of A1.

This was followed by a scuffle between P.W.2 and Al. In the midst of such a scuffle, Manoharan, who was the elder brother of P.W.2 intervened.

Even at that state, the deceased was not in the mind of the accused. A1 pushed him aside. What transpired immediately thereafter is, leaving

P.W.2 and A1 and A3 caught hold of Manoharan and at the instigation of A1, A2 caused one stab injury on the left side chest of Manoharan.

which proved fatal. As Manoharan, was receiving the injury he advised P.W.2 to run away from the scene. We would go to the question of assault

on P.W.2, a little later. From the materials noticed above, it is clear to our mind that the fatal attack on the deceased had taken place in the midst

of such a quarrel between P.W.2 on the one hand and A1 on the other hand regarding the non-payment of the money stated to be due by P.W.2

to A1. It may be true that it is the accused, who initiated the quarrel. But that fact itself would not disable A2 from getting the benefit of Exception

4 to Section 300 I.P.C, if all the other requirements of the said exception is established. The Hon''ble Supreme Court of India, while considering

the scope of extending the benefit of Exception 4 to Section 300 had laid down as follows in the judgment reported in Surinder Kumar Vs. Union

Territory, Chandigarh,

To invoke Exception 4 to Section 300, four requirements must be satisfied namely, (i) it was a sudden fight; (ii) there was no premediatioiv (iii) the

act was done in a hit of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is

not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a

decisive factor but the importance is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of

anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where on a sudden quarrel, a person in the

hit of the moment picks up a weapon which is handed and causes injuries, one of which proves fatal, he would be entitled to the benefit of this

Exception provided he has not acted curely. Thus whether any cause of quarrel between the deceased and the accused regarding possession of

premises, it was reasonable to infer from the facts that the deceased must have intervened on the side of his brother and in the course of the scuffle

he received injuries, one of which proved fatal, the accused would be entitled to the benefit of the Exception 4 to Section 300. Merely because

three injuries were caused to the deceased during the scuffle, it could not be said that he had acted in a cruel and unusual manner. Under these

circumstances, the accused could be convicted u/s 304 Part-II.

That Judgment, in our opinion, squarely applies to the case of hand. Accordingly we have no difficulty at all holding that the Appellant cannot be

convicted for the offence punishable u/s 302 I.P.C. and it must be necessarily brought down to Section 304-I.P.C. The intention to cause death

may be easily attributable to the convicted accused from the situs of the injury. Under these circumstances, while confirming the judgment under

challenge, we alter the conviction of the convicted accused from one u/s 302 I.P.C. to 304-I I.P.C.

Coming to the assault on P.W.2 his oral evidence definitely deserves acceptance at our hands. P.W.6 is the Doctor, who attended on him

initially and P.W.7 is the Doctor, who performed surgery on P.W.2. Ex.P.8 is the wound certificate. He had totally three injuries, out of which one

is a grievous injury. The evidence of P.W.6 is that injury No. 1 found on P.W.2 had penetrated into the left lung of P.W.2. The very nature of

injury itself, but for proper medical treatment, would have resulted in death. Therefore the conviction of the Appellant for the offence punishable u/s

307 I.P.C. for causing the injury on P.W.2 cannot be interfered with in any manner, since there is legal evidence to support, such a finding. In

conclusion we hold that, while confirming the judgment under challenge, the conviction of the Appellant for the offence punishable u/s 307 I.P.C.

stands confined and the conviction of the Appellant for the offence punishable u/s 302 I.P.C. is set aside and instead, he will stand convicted for an

offence punishable u/s 304-I I.P.C. for which offence, he will stand sentenced to undergo rigorous imprisonment for seven years. Both the

sentences are directed to run concurrently. On the facts of this case, we are not inclined to impose any fine on the convicted accused/Appellant for

the offence punishable u/s 304-I I.P.C. The court of Session, Kanyakumari at Nagerocil shall take appropriate steps to secure the presence of the

convicted accused and commit him to prison to undergo the rest of the sentence. Whatever period of detention the Appellant/accused had

undergone during the entire proceedings till now, will be set off against his imprisonment.